The External Dimension of EU Social Security Coordination: Towards a Common EU Approach [1 ed.] 9789004415331, 9789004415324

Citation preview

The External Dimension of EU Social Security Coordination

Studies in EU External Relations Edited by Marc Maresceau (Ghent University) Editorial Board Marise Cremona (European University Institute) Günter Burghardt (former EU ambassador Washington) Alan Dashwood (University of Cambridge) Frank Hoffmeister (European Commission) Pieter Jan Kuijper (University of Amsterdam)

volume 15

The titles published in this series are listed at brill.com/​seur

The External Dimension of EU Social Security Coordination Towards a Common EU Approach By

Pauline Melin

LEIDEN | BOSTON

The Library of Congress Cataloging-​in-​Publication Data is available online at http://​catalog.loc.gov LC record available at http://​lccn.loc.gov/2019037934​

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/​brill-​typeface. issn 1875-​0 451 isbn 978-​9 0-​0 4-​4 1532-​4 (hardback) isbn 978-​9 0-​0 4-​4 1533-​1 (e-​book) Copyright 2020 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-​free paper and produced in a sustainable manner.

Contents 1

2

3

Introduction 1 1 Setting the Scene 1 1.1 The Fundamental Elements of Social Security Coordination 3 1.2 The Nature of Social Security Coordination 4 1.3 The Current EU Social Security Coordination 6 2 Aims and Structure of the Research 9 3 Methodology 11 3 .1 Research Method 11 3 .2 Choice of Countries 12 4 Existing Research on Social Security Coordination with Third Countries 17 5 Exclusions from the Scope of the Research 21 6 Terminology 22 The EU Legal Framework on Social Security Coordination Relevant for Third-​Country Nationals 24 1 The Internal Dimension of EU Social Security Coordination 25 1.1 History of the EU Rules on Social Security Coordination 25 1.2 Social Security Coordination for Third-​Country Nationals Moving between Member States 29 1.3 The Coordination Rules under Regulation 1231/​2010 33 2 The External Dimension of EU Social Security Coordination 65 2.1 EU Agreements with Third Countries 68 2.2 The EU Migration Directives: Unilateral EU Measures 111 3 The EU Charter of Fundamental Rights 133 3 .1 The Applicability of the EU Charter 134 3 .2 Article 34 of the EU Charter: Social Security and Social Assistance 136 4 Conclusion 139 Member States’ Bilateral Agreements on Social Security Coordination with Third Countries: a Comparative Analysis of the Bilateral Agreements between Belgium, the Netherlands and Germany with Respectively India, Turkey and the usa 142 1 India’s Bilateral Social Security Agreements with Belgium, Germany and the Netherlands 146

vi Contents 2 3 4 4



5

1.1 Background of the Bilateral Agreements 146 1.2 Comparison of the Member States’ Social Security Agreements with India 152 The usa’s Bilateral Social Security Agreements with Belgium, Germany and the Netherlands 162 2.1 Background of the Bilateral Agreements 162 2.2 Comparison of the Member States’ Social Security Agreements with usa 166 Turkey’s Bilateral Social Security Agreements with Belgium, Germany and the Netherlands 171 3 .1 Background of the Bilateral Agreements 171 3 .2 Comparison of the Member States’ Social Security Agreements with Turkey 178 Conclusion 187

International Standards Relevant for Social Security Coordination with Third Countries 189 1 United Nations’ Instruments 190 1.1 The International Bill of Human Rights 191 1.2 The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (icrmw) 193 2 International Labour Organisation’s Instruments 195 2.1 ilo Instruments with Relevance for Social Security Coordination 198 2.2 Ilo Instruments Specifically on Social Security Coordination 200 2.3 The Relevance of ilo Instruments within the European Union 202 3 Council of Europe’s Instruments 204 3 .1 Council of Europe’s Instruments on Social Security Coordination 205 3 .2 Council of Europe’s Instruments Setting Minimum Standards Relevant for the Field of Social Security 210 4 Conclusion 237 EU Agreements as a First ‘Solution’ to Develop a Common EU Approach to Social Security Coordination with Third Countries 240 1 EU Agreements: the ‘Solution’ to Achieve a Common EU Approach on Social Security Coordination? 241

Contents

2 3 6

4

vii

1.1 The Added Value of a Common EU Approach 241 1.2 The Existence and the Nature of EU Competence 244 1.3 An EU Agreement Per Third Country Instead of an EU Agreement for All Third Countries 249 Option 1: EU Agreements that Include Provisions on Social Security Coordination 252 2.1 The Inclusion of Social Security Provisions in Association Agreements 253 2.2 The Inclusion of Social Security Provisions in Partnership and Cooperation Agreements (pca s) 259 2.3 The Inclusion of Social Security Provisions in Free Trade Agreements (fta s) 261 Option 2: EU Agreements on Social Security Coordination with Third Countries 263 3 .1 Article 48 tfeu as a Potential Legal Basis 264 3 .2 Article 79(2)(b) tfeu as a Potential Legal Basis 267 3 .3 A Combination of Article 48 tfeu and Article 79(2)(b) tfeu 269 3 .4 Article 153 tfeu as an Alternative Legal Basis 271 3 .5 Article 352 tfeu: the ‘Flexibility Clause’ to the Rescue 273 3 .6 Enhanced Cooperation as a Last Resort Solution 274 Conclusion 277

An EU Model Agreement as a Second ‘Solution’ to Develop a Common Approach to Social Security Coordination with Third Countries 279 1 Institutional Considerations 280 1.1 An EU Model Agreement for the Member States and for the EU Institutions 280 1.2 The Optional Character of an EU Model Agreement on Social Security Coordination with Third Countries 283 1.3 One Model Agreement Fitting All Third Countries or One Model Agreement Per Third Country? 283 1.4 The Working Group on the International Dimension of Social Security Coordination as the Target Group for This EU Model Agreement 285 1.5 The Legal Basis for an EU Model Agreement 287 2 The Content of an EU Model Agreement on Social Security Coordination with Third Countries 289 2.1 Personal Scope 289 2.2 Material Scope 292

newgenprepdf

viii Contents 7



3

2.3 Equal Treatment 294 2.4 Rules Determining the Law Applicable 295 2.5 Export of Benefits 297 2.6 Aggregation of Periods of Insurance 298 2.7 Administrative Cooperation 298 Conclusion 299

Concluding Remarks and Policy Recommendations 302 1 Identifying the Elements of the Different Approaches to Social Security Coordination with Third Countries 303 1.1 The EU Approach 303 1.2 The National Approaches 307 1.3 The Relevance of International Instruments for the Development of a Common EU Approach 308 2 Developing a Common EU Approach to Social Security Coordination with Third Countries 309 2.1 EU Agreements as a First ‘Solution’ Envisaged 310 2.2 An EU Model Agreement as a Second ‘Solution’ Envisaged 313 2.3 Final Conclusion on the Future of the External Dimension of EU Social Security Coordination 316 Bibliography 319 Index 366

­c hapter 1

Introduction 1

Setting the Scene

When one thinks about migration to the EU, the pictures of migrants crossing the Mediterranean Sea come to mind. In the past years, the media and political debate has been centred on the so-​called ‘refugee crisis’. To illustrate this, one of the latest communication on migration from the European Commission focuses exclusively, perhaps for good reasons, on reforming the asylum system.1 It is not easy, in that context, to advocate for a more liberal migration policy. However, the European Union (‘EU’) and its Member States need more migration from third countries. It is both a necessity and a reality. The EU has an ageing and shrinking population combined with labour shortages in several Member States.2 Workers coming from third countries3 have been portrayed by the European Commission as one of the potential solutions to reduce labour shortages in the EU.4 Additionally, the variations in labour shortages could be mitigated by enhancing the mobility of third-​country workers within the EU.5 Despite the importance of migration from third countries, the EU is losing the competition for attracting talent from outside its territories.6 By 2030, half of 1 2 3

4

5 6

European Commission, ‘Commission contribution to the EU Leaders’ thematic debate on a way forward on the external and internal dimension of migration policy’ (Communication) COM (2017) 820 final. European Commission, ‘The Global Approach to Migration and Mobility’ (GAMM) (Communication) COM (2011) 743 final, 2; European Commission, ‘An open and secure Europe: making it happen’ (Communication) COM (2014) 154 final, 3. The term ‘third countries’ refer to countries which are not members of the European Union. eea efta States (Norway, Iceland and Liechtenstein) as well as Switzerland are not members of the EU and therefore are considered as third countries even though they have a special status when it comes to social security coordination with the EU. Such a special status is further explained on pp. 62–​77. European Commission, ‘The Global Approach to Migration and Mobility’ (GAMM) (Communication) COM (2011) 743 final, 3; European Commission, ‘An open and secure Europe: making it happen’ (Communication) COM (2014) 154 final, 3; European Commission, ‘Communication on migration’ (Communication) COM (2011) 248 final, 13. European Commission, ‘An open and secure Europe:  making it happen’ (Communication) COM (2014) 154 final, 4; European Commission, ‘Europe 2020: a strategy for smart, sustainable and inclusive growth’ (Communication) COM (2010) 2020 final, 18. European Commission (European Political Strategy Center), ‘10 Trends Shaping Migration’, 2017; A. David & J-​N. Senne, ‘A descriptive analysis of immigration to and emigration

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_002

2

Chapter 1

the world’s graduates will come from China and India.7 By 2024, the UN expects India to be a net sender worldwide of more than 100. 000 migrants annually.8 However, between 2015 and 2050, Germany is the only Member State in the top 6 of net receiver countries worldwide.9 Those are just examples but they show that there is great potential for labour migration from outside the EU. Those examples also show that if there is not a rethinking about migration as an opportunity to seize rather than a crisis to manage, the EU will be doomed in staying an ageing continent. Attracting workers from third countries is a multi-​facetted project ranging from visa facilitation, diploma recognition, family integration to the securement of social security rights acquired or in course of acquisition. Social security coordination is one of the elements facilitating labour migration.10 It is a crucial element as the mobility of migrant workers influences their legal position and has an impact on their rights, including social security rights. Social security systems work on the basis of the territoriality principle.11 The principle of territoriality implies that States are sovereign within their territories in their decisions to provide social security.12 The territoriality principle establishes a link between the territory of a State and the grant of social security rights. This from the EU. Where does the EU stand within OECD?’ OECD Social, Employment and Migration Working Papers (No.184, 2016). 7 oecd, Education Indicators in Focus (oecd Publishing 2015). 8 United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 10. Available https://​esa.un.org/​unpd/​wpp/​Publications/​Files/​WPP2017_​KeyFindings.pdf, last accessed on 31 May 2019. 9 The usa, Germany, Canada, the UK (currently a Member State but not expected to be in 2050), Australia and the Russian Federation will be the top net receivers of international migrants according to the UN projections. United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 10. Available https://​esa.un.org/​unpd/​wpp/​ Publications/​Files/​WPP2017_​KeyFindings.pdf, last accessed on 31 May 2019. 10 The European Commission considers that securing third-​country workers’ social security rights is an essential element for promoting labour mobility. European Commission, ‘The Global Approach to Migration and Mobility’ (gamm) (Communication) com (2011) 743 final, 4; European Commission, ‘Maximising the Development Impact of Migration: the EU contribution for the UN High-​level Dialogue and next steps towards broadening the development-​migration nexus’ (Communication) com (2013) 292 final, 11. 11 Territoriality is defined by the Black’s Law Dictionary as ‘the principle that a country has the right of sovereignty within its borders’. B. A. Garner (Ed.), Black’s Law Dictionary (Tenth Edition, Reuters 2014) 1701. 12 R. Cornelissen, ‘The Principle of Territoriality and the Community Regulations on Social Security (Regulations 1408/​71 and 574/​72)’ 33 Common Market Law Review (1996) 440–​441.

Introduction

3

means that social security systems rely on circumstances and facts taking place within the territory of one State. Hence, when the facts of a person’s situation are not confined within the territory of one State, several issues arise with regard to the social security rights of a person. The mobility of migrant workers who have cross-​border careers has an impact on their social security rights. For example, a migrant worker who works for a company established in State A but is sent to work for that company in State B could be contributing to both State A and B if the States are not cooperating. As another example, it might be the case that State A asks for a certain number of years of paid contributions in order to have access to pension benefits. However, a migrant worker might not get his/​her years of contribution completed abroad recognised when being in the process of being granted his/​her pension rights. 1.1 The Fundamental Elements of Social Security Coordination In order to reduce the risks faced by migrant workers with regard to their social security rights, social security coordination ideally contains five fundamental elements:13 a rule on conflict of laws; a rule on equal treatment; a rule on export of benefits; a rule on aggregation of periods of insurance; and a rule on administrative cooperation. States use territorial criteria as connecting factors to define whether a person falls within their social security systems. The traditional connecting factors in social security law are defined through residence or employment. The connecting factor based on residence implies that a person is subject to the social security legislation of the country where he or she resides. The connecting factor based on employment means that a person is subject to the social security legislation of the country where he or she works. Sometimes, the connecting factor can also be that the person is subject to the social security legislation from the country where his or her employer has its registered office. Also, for seamen, the connecting factor is usually defined according to the flag of the ship that seamen sail in. For a mobile person, different connecting factors of different States can lead to situations where the person is not covered by any 13

These fundamental elements have been identified by the majority of stakeholders working on social security coordination:  B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010); missoc, MISSOC Analysis 2013/​2: External Aspects of Social Security Coordination, 2013; R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 22; ilo, Social Security Coordination for non-​EU States in South and Eastern Europe: a legal analysis (2012) 1.

4

Chapter 1

States’ social security legislation (negative conflict of laws) or is covered by more than one State’s social security legislation (positive conflict of laws). In order to avoid negative or positive conflict of laws, social security coordination provides for rules of conflict of laws. One of the consequences of the territoriality principle is that the State is sovereign to decide the conditions of access to its social security system. In that regard, a State could decide to restrict access to its social security system only to its own nationals. In order to avoid discriminatory situations, social security coordination includes a rule on equal treatment of non-​nationals with the State’s own nationals. Also, when a State requires certain number of years for being granted some social security benefits, that State could refuse to recognize periods of contributions accomplished in another social security system. That refusal would be harmful for migrant workers who have potentially contributed to several social security systems in their career. In that regard, social security coordination provides for a rule on aggregation of periods of insurance. Such a rule permits periods of contributions completed abroad to be recognised when a State decides whether or not to grant a social security benefit. The State could also impose territorial restrictions to the payment of social security benefits. For example, a State could choose to restrict the payment of some social security benefits within its territory. Hence, social security benefits would not be paid to those persons who decide to go and live abroad. The technique used to ensure the payment of benefits to beneficiaries residing abroad is the inclusion of a rule on export of benefits in social security coordination agreements. Finally, in order to facilitate the administrative phases in accessing, retaining and exporting social security benefits, social security coordination demands a rule on administrative cooperation. Such a rule will permit, for example, the recognition of administrative documents from one State by the other State without the need of paying administrative fees or the need to issue official translation. 1.2 The Nature of Social Security Coordination ‘Social security coordination’, and therefore also ‘social security’ are concepts that are at the heart of this research. First of all, it must be said that there is no uniform definition of social ­security.14 The ilo refers to social security as encompassing ‘all measures 14

G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D.  Pieters & P.  Schoukens (Eds.), The Social Security

Introduction

5

providing benefits, whether in kind or in cash, to secure protection.’15 For the purpose of this research, the terminology ‘social security’ refers in fact to arrangements provided by States to cover social risks. Those arrangements are also called sometimes ‘social security branches’ or ‘social security schemes’.16 In this research, social security is understood to cover the nine social security branches defined by the ilo Convention No. 102: family benefits, unemployment benefits, sickness benefits, medical care benefits, maternity benefits, employment injury benefits, old-​age benefits, invalidity benefits, survivors’ benefits.17 Social security coordination is a technique that builds bridges between social security systems in order to reduce the risks faced by migrant workers concerning their social security rights. The term ‘coordination’ is an important term. Coordination rules do not alter social security systems. They do not modify the conditions under which benefits are granted. They do not intrude in the States’ sovereignty in organizing their internal social security system. Hence, coordination should not be confused with harmonization. Harmonization rules might demand substantive changes in the social security systems. An example of a harmonization rule is the ilo Convention No. 102 which provides for minimum standards of social security to be respected by its members.18 If its members do not provide for those minimum standards in their social security systems, they need to make changes in order to comply with the Convention. The technique of social security coordination is exercised through the conclusion of bilateral or multilateral agreements between States. Hence, social security coordination requires cooperation between two or more States. Bilateral agreements are the most numerous sources of social security coordination. In the EU, the Member States have concluded over 350 bilateral agreements with

15 16 17

18

Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 104. In addition, ‘social security’ and ‘social protection’ are sometimes used inter-​ changeably in the literature. For a discussion about the different concepts in the literature, see N. Taha, K. A. Siegmann & M. Messkoub, ‘How portable is social security for migrant workers? A review of the literature’ 68 International Social Security Review (2015) 98. ilo, World Social Security Report 2010/​11: Providing coverage in times of crisis and beyond (2010) 13. D. Pieters, Social Security: An Introduction to the Basic Principles (Second Revised Edition, Kluwer Law International 2006) 3. Regulation 883/​2004 provides a list of 10 social security benefits in Article 3(1): sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-​age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits, pre-​retirement benefits, and family benefits. Convention No. 102 is further addressed in Chapter 4, pp. 189–​191.

6

Chapter 1

third countries.19 As it will be explained in Chapter 3 of this research, Member States’ bilateral agreements with third countries are the traditional sources of social security coordination. Next to those bilateral agreements, several States or international organizations can conclude multi-​lateral agreements on social security coordination. For example, the Council of Europe has adopted the European Convention on Social Security.20 In addition, States can provide for unilateral measures that will have an impact on the social security rights of migrant workers. Those unilateral measures also sometimes cover one of the fundamental elements of social security coordination. For example, States can unilaterally decide to provide for the export of pension rights in their national laws. Even though unilateral measures are not coordination measures as they do not require cooperation between two or more States, they are still relevant for this research considering their impact on the social security rights of migrant workers. 1.3 The Current EU Social Security Coordination 1.3.1 The Internal Dimension of EU Social Security Coordination In 1958, the EU adopted social security coordination rules in Regulations No 3 and 4 with the purpose of enhancing labour mobility within the EU.21 They have been replaced by Regulations No 1408/​71 and 574/​72,22 which in turn have been replaced by Regulations No 883/​2004 and 987/​2009.23 The social security coordination enshrined in Regulation 883/​2004 and 987/​2009 is one of the most extensive coordination schemes in the world.24 It covers a large number 19 20 21 22

23

24

H. Verschueren, ‘Employment and Social Security Rights of Third-​Country Labour Migrants under EU Law:  An Incomplete Patchwork of Legal Protection’ 18 European Journal of Migration and Law (2016), 404. This Convention is discussed in Chapter 4, pp. 196–​198. Council Regulation No 3 on social security for migrant workers, [1958] OJ 30/​561-​58; Council Regulation No 4 fixing the implementing procedure and supplementing provisions of Regulation No 3, [1958] OJ 30/​597. Council Regulation (eec) No 1408/​71 of 14 June 1971 on the application of social security schemes to employed persons, to self-​employed persons and to members of their families moving within the Community, consolidated version, [1997] OJ L 28/​1; Council Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, consolidated version, [1997] OJ L 28/​1. Regulation (EC) No 883/​2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L 166/​1; Regulation (EC) No 987/​2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/​2004, [2009] OJ L 284/​1. F. Pennings, ‘Principles of EU coordination of social security’, in F. Pennings and G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing

Introduction

7

of risks through the coordination of legislation on sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-​age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits, pre-​retirement benefits, family benefits.25 The rules contained in Regulation 883/​2004 and 987/​2009 coordinate the social security systems of the Member States of the EU. Adopted in order to facilitate free movement within the EU, the rules of Regulation 883/​ 2004 and 987/​2009 also apply to third-​country nationals who move within the EU thanks to Regulation 859/​2003,26 later replaced by Regulation 1231/​2010.27 1.3.2 The External Dimension of EU Social Security Coordination Whereas the internal dimension of EU social security coordination has been adopted for the purpose of facilitating free movement, the external dimension of EU social security coordination is not founded on that same purpose. In fact, compared to the internal dimension, there is not one instrument and no single purpose that would represent the external dimension of EU social security coordination. The expression of the ‘external dimension of EU social security coordination’ was used for the first time by the European Commission in a 2012 communication to describe the plethora of EU instruments on the subject.28 The ‘external dimension’ can reflect the fact that some of the EU instruments are concluded with third countries directly. An example of such an agreement would be the EU-​Turkey Ankara Agreement29 concluded in 1963. Within the context of the EU-​Turkey Ankara Agreement, Decision 3/​8030 on

25 26

27

28 29 30

2015)  340; W.  van Ginneken, ‘Social Protection for Migrant Workers:  National and International Policy Challenges’ 15 European Journal of Social Security (2013) 215. Article 3 of Regulation (EC) No 883/​2004. Regulation (EC) No 859/​2003 of 14 May 2003 extending the provisions of Regulation (eec) No 1408/​71 and Regulation (eec) No 574/​72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, [2003] OJ L 124/​1. Regulation (EU) No 1231/​2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/​2004 and Regulation (EC) No 987/​ 2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality, [2010] OJ L 344/​1. European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final. Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 [1977] OJ L 361/​1. Decision 3/​80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C110/​60.

8

Chapter 1

social security coordination has been adopted by the EU-​Turkey Association Council. Another example is the Euro-​Mediterranean Agreement with Tunisia which contains provisions on equal treatment, aggregation of periods of insurance, employment or residence, entitlement to family allowances and transfer of benefits for migrant workers coming from Tunisia and their family members.31 The ‘external dimension’ also reflects the fact that the EU instruments are covering the situation of third-​country nationals moving from a third country to the EU, a situation of external mobility. In that regard, there are EU unilateral measures providing equal treatment of third-​country nationals with nationals of the Member States with regard to social security rights. Such unilateral measures are the Directives dealing with migration; i.e. the Long-​Term Residence Directive,32 the Blue Card Directive,33 the Single Permit Directive,34 the Intra-​Corporate Directive,35 the Seasonal Workers Directive,36 and the Students and Researchers Directive.37 The equal treatment provisions contained in those directives have different scope and provide for different possible derogations. The European Commission recognizes that the current European Union legislation on legal migration has resulted in a

31 Article 65 of Euro-​ Mediterranean Agreement with Tunisia. Euro-​ Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, [1998] OJ L 097/​2. 32 Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents, [2004] OJ L 16/​44. 33 Council Directive 2009/​50/​EC of 25 May 2009 on the conditions of entry and residence of third-​country nationals for the purpose of highly qualified employment, [2009] OJ L 155/​17. 34 Directive 2011/​98/​EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and a common set of rights for third-​ country workers legally residing in a Member State, [2011] OJ L 343/​1. 35 Directive 2014/​66/​EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-​country nationals in the framework of an intra-​corporate transfer, [2014] OJ L157/​1. 36 Directive 2014/​36/​EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and residence of third-​country nationals for the purpose of employment as seasonal workers, [2014] OJ L94/​375. 37 Directive 2016/​801/​EU of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or education projects and au pairing, [2016] OJ L 132/​21. (re-​cast of the Students and Researchers Directive).

Introduction

9

complicated situation of ‘unparalleled standards of social security rights for migrants’.38 Finally, the ‘external dimension’ of EU social security coordination is a subject discussed every year within the Administrative Commission of the European Commission.39 The Administrative Commission is a body set up in the context of Regulation 883/​2004 and composed of the Member States’ representatives and a member of the staff from the European Commission.40 The European Commission acts as the Secretary of that Administrative Commission.41 The tasks of the Administrative Commission are set out in Article 72 of Regulation 883/​2004. Among its tasks, there is the facilitation of the uniform application of Union law, especially by promoting the exchange of experience and best administrative practices, as well as fostering and developing cooperation between the Member States and their institutions in social security matters.42 Within the Administrative Commission, there is a working group on the international dimension of EU social security coordination which discusses annually the external dimension of EU social security coordination. It can be said that there is an external dimension of EU social security coordination. However, compared to the internal dimension of EU social security coordination, there is no common EU approach to the external ­dimension. 2

Aims and Structure of the Research

Based on the premise that there is no common EU approach to social security coordination with third countries, this research has two main aims: –​ mapping what are the elements of the different approaches to social security coordination with third countries –​ Developing a common EU approach based on the different elements ­identified

38 39 40 41 42

European Commission, ‘Maximising the Development Impact of Migration:  the EU contribution for the UN High-​level Dialogue and next steps towards broadening the development-​migration nexus’ (Communication) COM (2013) 292 final, 5. This element of the external dimension of EU social security coordination is discussed in Chapter 6, pp. 270–​272. Articles 71(1) and 72 of Regulation 883/​2004. Article 72 of Regulation 883/​2004. Article 72(b) and (c) of Regulation 883/​2004.

10 

Chapter 1

Those two main aims can be translated into a research question:  how could a common EU approach on social security coordination with third countries be developed and what elements could be included in that approach? The first aim of this research is achieved through an analysis of the different instruments at EU and Member States’ level. The purpose of that analysis is to discuss what elements the EU and the national instruments contain in order to identify what needs to be included in a common EU approach. The analysis of the EU instruments and the national instruments are conducted in Chapter 2 and Chapter 3 respectively. By identifying the different elements of social security coordination, the potential causes of a lack of common EU approach are also considered. Besides the (lack of a) common EU approach, there are also international instruments setting rules on social security coordination or providing for human rights standards having an impact on the social security rights of migrant workers. Those international instruments are instruments adopted by the United Nations (‘UN’), the International Labour Organisation (‘ilo’) or the Council of Europe (‘CoE’). Chapter 4 aims at exploring what elements of the international instruments would influence the Member States and the EU in achieving a common EU approach. The second aim of this research is to propose a common EU approach to social security coordination with third countries. The development of a common EU approach is envisaged from both an institutional and substantive perspective. Hence, through the second aim, the research question of how a common EU approach could be achieved and what that common EU approach could entail should be answered. Those questions of how and what are answered on the basis of the analysis conducted in Chapters 2, 3 and 4 on the EU, national and international instruments. This results in two ‘solutions’ or policy options being considered in Chapter 5 and Chapter 6 respectively. The first ‘solution’ reflects on what was proposed by the European Commission itself in its 2012-​communication on the external dimension of EU social security coordination.43 According to the European Commission, this common EU approach can be achieved in two ways. First, the European Commission encourages the conclusion of more Association Agreements in which a standard social security coordination clause would be included.44 Second, the European Commission advocates the creation of a new instrument: an EU 43 44

European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 2. European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 8.

Introduction

11

social security agreement. This new instrument would consist of a tailor-​made agreement with the EU’s strategic partners, without the need of concluding an Association Agreement.45 The two ways proposed by the European Commission focuses on the EU as the principal actor in coordinating social security systems with third countries as opposed to the Member States. Chapter 5 aims at questioning how this first ‘solution’ or policy option could be developed. For that purpose, Chapter 5 reflects critically on the added value of focusing on the EU as the main driving force as well as on the potential legal bases for such an EU action. Chapter 6 aims at exploring what could be an alternative to the first ‘solution’ put forward by the European Commission. Chapter 6 considers whether a softer approach could not be preferred to pursue a common EU approach on social security coordination with third countries. Several institutional considerations are raised with regard to this softer approach. First, the idea of developing a model agreement on social security coordination is discussed. In that context, the relevance of an EU model agreement for the Member States and/​ or the EU itself is questioned. Furthermore, it is discussed whether it should be one model agreement fitting all third countries or a model agreement per third country. Finally, Chapter 6 ends with answering the second part of the research question on what could be included (content-​wise) in a common EU approach by building on the results of the analysis conducted in Chapters 2, 3 and 4. This research ends with concluding remarks and recommendations for the future of a common EU approach. 3

Methodology

3.1 Research Method This research uses the method of comparative legal analysis. The comparative law method comprises two steps:  the description of the sources to be compared and the comparison itself.46 The purpose of using the comparative law method in this research is to identify the different elements that need to be integrated in a common EU approach to social security coordination with third countries. The comparative legal analysis encompasses an in-​depth analysis of 45 46

European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 8–​9. For a comprehensive overview of the comparative legal methodology, see M. Reimann & R. Zimmermann (Eds.), The Oxford Handbook of Comparative Law (Oxford University Press 2006).

12 

Chapter 1

European, national and international legal instruments concerning social security coordination with third countries. It combines an analysis of the statutory provisions and of the relevant jurisprudence. Academic writings in several disciplines such as law, sociology, and political sciences, are also considered. Additionally, interviews, using a combination of an inductive and deductive approach, were held with stakeholders from the Member States’ delegations who conclude bilateral agreements on social security coordination with third countries as well as with officials of EU institutions. The interviews provided up-​to-​date and accurate information about the legislation on social security coordination. It also permitted an understanding of the difficulties in coordinating social security in practice that are not disclosed otherwise. The sources used for comparison are the different agreements (bilateral or multi-​lateral) on social security coordination. Whereas the traditional way of conducting comparative law analysis would demand a description first of the legal system and legal tradition,47 such an analysis is not necessarily relevant for this research. As already explained, bilateral agreements do not modify the social security systems they coordinate. Rather, bilateral agreements ­permit social security systems to be bridged. Consequently, this research does not entail a description of the social security systems of the different countries selected in this research. The comparative legal analysis in this research focuses solely on the instrument of coordination: the bilateral or multilateral agreements. The comparison is structured around the fundamental elements of social security coordination identified previously, i.e. rules on the conflict of laws, a rule on equal treatment, a rule on aggregation of periods of insurance, a rule on export of benefits and a rule on administrative cooperation. 3.2 Choice of Countries In Chapter 2, an exhaustive analysis of all the EU instruments on social security coordination with third countries as well as all the EU instruments having an impact on the social security rights of third-​country nationals is conducted. There are no selection criteria as all the existing instruments are analysed. Similarly, in Chapter 4, all the international instruments adopted by the UN, the ilo and the Council of Europe relevant for social security coordination are considered. In Chapter 3, nine bilateral agreements concluded by three Member States with three third countries are analysed and compared. The three Member 47 N. Jansen,’Comparative Law and Comparative Knowledge’, in M.  Reimann & R.  Zimmermann (Eds.), The Oxford Handbook of Comparative Law (Oxford University Press 2006) 306.

Introduction

13

States selected in this research are Germany, Belgium and the Netherlands. The third countries are India, Turkey and the usa. Consequently, the comparative legal analysis of the national instruments concerns nine bilateral social security agreement (hereinafter ‘ssa’): the India-​Belgium ssa,48 the India-​Germany ssa,49 the India-​Netherlands ssa,50 the Turkey-​Belgium ssa,51 the Turkey-​ Germany ssa,52 the Turkey-​Netherlands ssa,53 the usa-​Belgium ssa,54 the usa-​Germany ssa,55 the usa-​Netherlands ssa.56 The choice of the countries for the purpose of this research can be explained by various factors including migration profiles, diversity in the experience of concluding social security coordination agreements (i.e some are old-​generation agreements while some others are more recent) as well as the proximity of the Member States with similar needs in terms of labour migration.57 The idea behind the choice was to ensure diversity while being able to find comparisons. Diversity is to be found in the different legal traditions, in the different historical approaches to legal migration and in the different strategies to conclude social security coordination agreements. With regard to the choice concerning the Member 48 49 50 51 52 53 54 55 56 57

Agreement on social security between the Kingdom of Belgium and the Republic of India. Belgian Law Gazette, 21 August 2009. Agreement of 11 October 2011 between the Federal Republic of Germany and the Republic of India on Social Security, Bundesgesetzblatt Jahrgang 2012 Teil II Nr.19, ausgegeben zu Bonn am 12 Juni 2012. Agreement between the Republic of India and the Kingdom of the Netherlands, 22 October 2009. Convention générale sur la sécurité sociale entre le Royaume de Belgique et la République de Turquie, 11 Avril 2014. Gesetz zu dem Abkommen vom 30 April 1964 zwischen der Bundesrepublik Deutschland und der Republik Türkei über Soziale Sicherheit, 13.09.1965, Bundersgesetzblatt, Teil II, Z1998A, p.1169. Convention between the Kingdom of the Netherlands and the Republic of Turkey on Social Security, 5 April 1966. Agreement between the United States of America and the Kingdom of Belgium on Social Security, 19 February 1982. Agreement between the United States of America and the Federal Republic of Germany on Social Security, 7 January 1976. Agreement between the United States of America and the Kingdom of the Netherlands on Social Security, 8 December 1987. It should be noted that the last two considerations are inspired by the considerations for the methodology used by the World Bank Group Social Protection & Labor in its report on the assessment of social security bilateral agreements between several countries. See R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 6.

14 

Chapter 1

States, Germany, the Netherlands, and Belgium all present a high percentage of migrants amongst their total population.58 Concerning their labour migration policies, Germany, Belgium and the Netherlands developed similar approaches to labour migration with a ‘guest-​worker’ phase followed by a ‘recruitment stop’ and since then legal migration through restricted channels and family reunification. Germany is known for its ‘guest-​worker’ strategy that led to a period of ‘recruitment stop’ (Anwerbestopp) in 1973.59 Like Germany, the Netherlands pursued ‘guest worker’ strategies in the 1960’s. Over the years, the Dutch immigration policies have changed from liberal to restrictive. Despite the current restrictive attitude towards immigration, high-​skilled migration seems to be favoured and liberalised.60 Belgium has a similar profile as the Netherlands and Germany with regards to immigration flux. In the 1960’s, Belgium also received large numbers of ‘guest workers’. In 1974, the decision was made to stop recruiting migrant workers.61 With regard to the choice of third countries, the first selecting criterion was the fact that all three third countries have a strong relationship with the EU. This element is important as the European Commission has highlighted the need of stronger social security coordination with ‘priority countries’.62 Such ‘priority countries’ are, for example, large global economies such as India and China, as well as industrialised countries such as the United States, Canada and Australia.63 The usa and the EU concluded a Transatlantic Partnership in 1990.64 The EU and Turkey concluded an Association Agreement called the

58

According to Eurostat, 3,9% of the total population in Belgium come from third countries; 4,9% of the total population in Germany and 2,5% of the total population in the Netherlands. See News release from Eurostat, ‘Foreign citizens living in the Member States’, December 2015. Available at http://​ec.europa.eu/​eurostat/​documents/​2995521/​7113991/​ 3-​18122015-​BP-​EN.pdf/​d682df12-​8a77-​46a5-​aaa9-​58a00a8ee73e, last accessed on 31 May 2019. 59 W. Bosswick, ‘Germany-​ still a reluctant country of immigration?’, in D.  Turton & J. González (Eds.), Immigration in Europe: Issues, Policies and Case Studies (University of Deusto 2003) 127–​149. 60 M. Hercog, ‘The Role of the State in Attracting Highly-​Skilled Migrants: the Case of the Netherlands’ (eipascope 2008) 19–​24. 61 M. Martiniello, ‘Belgium’s Immigration Policy’ 37 International Migration Review (2003) 226. 62 European Commission, ‘An open and secure Europe: making it happen’ (Communication) COM (2014) 154 final, 8. 63 European Commission, ‘The Global Approach to Migration and Mobility’ (GAMM) (Communication) COM (2011) 743 final, 9. 64 Declaration on U.S.-​ EC Relations, 1 December 1990, available at https://​ useu.usmission.gov/​declaration-​u-​s-​ec-​relations/​, last accessed on 31 May 2019; New

Introduction

15

Ankara Agreement in 1963.65 And finally, India and the EU established a Strategic Partnership in 2004.66 More specifically, concerning the choice of India, it should be noted that Indian migration in Germany, Belgium and the Netherlands is comparable. Indian migrants are among the highest recipients of high-​skilled permits in the three Member States. In the Netherlands, Indians are the largest recipients of the high-​skilled working permits.67 In Germany, one fifth of the third-​country workers that obtained the ‘Green Card’ were Indians.68 Indians are the largest group of third-​country nationals who obtain a work permit69 in Belgium and more than half of the special permits for highly skilled workers were given to Indians.70 Additionally, India is currently the second most populated country in the world, behind China, with 1.3 billion people.71 But by 2024, the UN predicts that India will become the most populated country in the world.72 The UN expects India to be a net sender of more than 100.000 migrants annually.73 In that regard, the potential for Indian migration to the EU is high. Consequently, the relevance of social security coordination will increase in the coming years.

65 66 67 68 69 70 71

72

73

Transatlantic Agenda, 5 December 1995, available at https://​useu.usmission.gov/​new-​ transatlantic-​agenda/​, last accessed on 31 May 2019. Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 [1977] OJ L 361/​1. European Commission, ‘An EU-​India Strategic Partnership’ (Communication) COM (2004) 0430 final. oecd, International Migration Outlook 2014 (oecd Publishing 2014), 238 and 280. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. J. Apap, ‘Shaping Europe’s Migration Policy: New Regimes for the Employment of Third-​ Country Nationals: A Comparison of Strategies in Germany, Sweden, the Netherlands and the UK’ 4 European Journal of Migration and Law (2002) 317–​319. Work permit B. oecd, International Migration Outlook 2014 (oecd Publishing 2014), 238. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 1. Available https://​esa.un.org/​unpd/​wpp/​Publications/​Files/​WPP2017_​KeyFindings.pdf, last accessed on 31 May 2019. United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 5. Available https://​esa.un.org/​unpd/​wpp/​Publications/​Files/​WPP2017_​KeyFindings.pdf, last accessed on 31 May 2019. United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 10. Available https://​esa.un.org/​unpd/​wpp/​Publications/​Files/​WPP2017_​KeyFindings.pdf, last accessed on 31 May 2019.

16 

Chapter 1

India started to conclude bilateral agreements on social security coordination with the Member States in 2006. The first one was concluded with Belgium. India has currently concluded bilateral agreements with 12 Member States.74 American migration patterns to Germany, Belgium and the Netherlands can be compared to Indian migration patterns. While it is a diverse group, with low skilled and high-​skilled migration,75 Americans are among the highest recipients of high-​skilled permits in all three Member States.76 American migrants are the seventh largest group present in oecd countries but the United States is the third most populated country in the world.77 Therefore, there is still potential for more migration between the usa and the EU in the future. Concerning social security coordination, the usa and Member States have concluded bilateral agreements since the 1980’s. Therefore, in comparison with India, the usa has a longer tradition of concluding bilateral agreements with Member States. Currently, the usa has concluded bilateral agreements with 19 Member States.78 Finally, Turkey is an interesting country for comparative analysis because of its special relationship with both the EU and its Member States. Indeed, 74

75 76 77 78

Austria (signed in 2013, entered into force in 2015), Belgium (signed in 2006, entered into force in 2009), Czech Republic (signed in 2010, entered into force in 2014), Denmark (signed in 2010, entered into force in 2011), Finland (signed in 2012, entered into force in 2014), France (signed in 2008, entered into force in 2011), Germany (signed in 2008, entered into force in 2017), Hungary (signed in 2010, entered into force in 2013), Luxembourg (signed in 2009, entered into force in 2011), Netherlands (signed in 2009, entered into force in 2011), Portugal (signed in 2013, entered into force in 2017), Sweden (signed in 2012, entered into force in 2014). A. Klekowski von Koppenfels, Migrants or Expatriates? Americans in Europe (Palgrave Macmillan 2014). oecd, International Migration Outlook 2014 (oecd Publishing 2014) 280. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. oecd, International Migration Outlook 2014 (oecd Publishing 2014)  31. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. Italy (signed in 1973, entered into force on 1978), Germany (signed in 1976, entered into force on 1979), Belgium (signed in 1982, entered into force on 1984), United Kingdom (signed in 1984, entered into force on 1985), Sweden (signed in 1985, entered into force on 1987), Spain (signed in 1986, entered into force on 1988), France (signed in 1987, entered into force on 1988), Portugal (signed in 1988, entered into force on 1989), Netherlands (signed in 1987, entered into force on 1989), Austria (signed in 1990, entered into force on 1991), Finland (signed in 1991, entered into force on 1992), Ireland (signed in 1992, entered into force on 1993), Luxembourg (signed in 1992, entered into force on 1993), Greece (signed in 1993, entered into force on 1994), Denmark (signed in 2007, entered into force on 2008), Czech Republic (signed in 2007, entered into force on 2009) Poland (signed in 2008, entered force on 2009), Slovakia (signed in 2012, entered into force on 2014), Hungary (signed in 2015, entered into force on 2016).

Introduction

17

Turkey is the only third country selected in this research that has concluded an Association Council Decision on social security coordination with the EU itself79 in addition to bilateral agreements with 14 of the Member States.80 It should be noted that the bilateral agreements concluded by Turkey with the Member States date from the 1960’s and are therefore old-​generation agreements. Furthermore, in comparison with the American and Indian migration patterns, Turkish migration patterns to the EU and its Member States have a very different origin and profile. The Turkish population is largely present in the Member States included by this study due, inter alia, to their participation in the ‘guest worker’ programmes of those countries in the 1960’s.81 Turks are the most represented third-​country population in the Netherlands (396 000 on 1st January 2014)82 and in Germany.83 4

Existing Research on Social Security Coordination with Third Countries

So far, the topic of this research has not been extensively studied. Even though there is a gap in the literature, some scientific contributions have touched upon the subject of this research.

79 80

81 82 83

Decision 3/​80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C110/​60. Austria (signed in 1966, entered into force in 1969), Belgium (signed in 1966, entered into force in 1968; new one signed in 2014, entered into force in 2017), Croatia (signed in 2006, entered into 2012), Czech Republic (signed in 2001, entered into force in 2005), Denmark (signed in 1976, entered into force in 1978), France (signed in 1972, entered into force in 1973), Germany (signed in 1964, entered into force in 1965), Italy (signed in 2012, entered into force in 2015), Luxembourg (signed in 2004, entered into force in 2006), Netherlands (signed in 1966, entered into force in 1968), Romania (signed in 1999, entered into force in 2003), Slovak Republic (signed in 2007, entered into force in 2013), Sweden (signed in 1978, entered into force in 1981), and the United Kingdom (signed in 1959, entered into force in 1961). R. Euwals, J.  Dagevos, M.  Gijsberts & H.  Roodenburg, ‘Citizenship and Labor Market Position:  Turkish Immigrants in Germany and the Netherlands’. 44, 3 International Migration Review (2010) 518. oecd, International Migration Outlook 2014 (oecd Publishing 2014) 280. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. Turkish in Germany represent 20% of the total third-​country population. See the Federal Statistics Office from Germany. Available at https://​www.destatis.de/​EN/​FactsFigures/​ InFocus/​Population/​Foreigners.html, last accessed on 31 May 2019.

18 

Chapter 1

Particular relevant work for the context of this research is the report of B. Spiegel in 2010 on Member States’ bilateral agreements with third countries. The idea of a common EU approach in the field of social security coordination can in fact be traced back to his report. In his report, which was the preparatory work for the European Commission’s Communication,84 Spiegel analysed 38 bilateral agreements in total.85 Based on the comparison of the 38 bilateral agreements, he proposed several possibilities to develop a common EU approach. The possibilities identified by B. Spiegel are certainly a good starting point for considering the development of a common EU approach. However, as he pointed himself out, those possibilities were ‘only meant to provide incentives and help for those who want to further examine the issue’86 and therefore it is not surprising that they are not developed extensively.87 The report of B. Spiegel has the advantage of discussing more bilateral agreements (38) with third countries compared to the amount of bilateral agreements (9) discussed in this research. However, this research aims at developing concrete and extensive possibilities for a common EU approach with a particular focus on specific third countries: India, the usa and Turkey whereas Spiegel’s report aimed at reflecting on the possibilities in a broader context, without any specific third country in mind. Also, Spiegel does not discuss the institutional barriers to a common EU approach in the sense of the (lack) of potential legal basis for an involvement of the EU. Hence, his report is certainly helpful as a starting point for this research and references to his report can be found particularly in Chapter 3 on the Member State’s bilateral agreements with India, Turkey and usa. As regards the Member States’ bilateral agreements with India, the work of A-​P. van der Mei in relation to the analysis of the Dutch-​Indian and the Belgian-​Indian agreements must be mentioned.88 His paper discusses the social security rights of Indian nationals moving to the EU (more particularly to Belgium and the Netherlands) and then subsequently circulating within the EU. 84 85 86 87 88

B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 6. The list of the bilateral agreements analysed can be found in Annex 1 of B.  Spiegel’s Report. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 2–​3. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 60. From his 70 pages report, only 10 pages are concerned with the possibilities for a future common EU approach. A-​P.  van der Mei, ‘India-​EU Migration:  the Social Security Rights of Indian Nationals Moving to and within the European Union’, CARIM-​India Research Report (24, 2013).

Introduction

19

Additionally, concerning the Member States’ bilateral agreements with the usa, A. Pascal published a very comprehensive book on ‘Union européenne et usa:  protection sociale des travailleurs migrants’ in 2016.89 In her book, A.  Pascal analyses 435 bilateral agreements on social security coordination. She analyses the bilateral agreements concluded by the 28 Member States with third countries as well as the bilateral agreements concluded by the usa with third countries. Inevitably, this includes also analyses of the Member States agreements with the usa. However, regarding the scope of the analysis (436 bilateral agreements), the analysis is not provided in detail for every Member State’s agreement with the usa. In fact, it is not the purpose of her research. Her research is concerned with the comparison of the different approaches taken by the Member States on the one hand, and by the usa on the other hand, in their conclusion of bilateral agreements on social security coordination. In that sense, her work is strictly informative with regard to Chapter 3 of this research on the bilateral agreements between the usa and Belgium, the Netherlands and Germany. Furthermore, the research project conducted by the World Bank International Labour Migration team at the Marseille Centre for Mediterranean Integration provides useful information for this research.90 The project consists in four corridor studies on bilateral agreements on social security between four Member States and two third countries. Hence, they analysed the Austria-​Turkey bilateral agreement, the Germany-​Turkey bilateral agreement, the Belgium-​Morocco bilateral agreement and the France-​Morocco bilateral 89 A. Pascal, Union européenne et USA:  protection sociale des travailleurs migrants (Bruylant 2016). 90 R. Holzmann, ‘Do Bilateral Social Security Agreements Deliver on the Portability of Pensions and Health Care Benefits? A  Summary Policy Paper on Four Migration Corridors Between EU and Non-​Member States’, Social Protection& Labor Discussion Paper (No.1605, World Bank Group Social Protection & Labor 2016); R.  Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers:  A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016); R.  Holzmann, M.  Fuchs, S.  Paçaci Elitok & P.  Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Austria-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1602, World Bank Group Social Protection & Labor 2016); R. Holzmann, J. Wels & P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Belgium-​Morocco Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1603, World Bank Group Social Protection & Labor 2016); R. Holzmann, F. Legros & P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the France-​ Morocco Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1604, World Bank Group Social Protection & Labor 2016).

20 

Chapter 1

agreement. The aim of the analysis was to explore whether the bilateral agreements were effective and were enhancing labour migration. The analysis of the bilateral agreements was conducted on the basis of three selected criteria: fairness for individuals, fiscal fairness for countries, and bureaucratic effectiveness for both countries and migrant workers. Also, H. Caglayankaya wrote her PhD on the possibilities for a better coordination of social security rights for third-​country nationals who migrated from and to the EU.91 While her subject seems very close to this research, her angle was in fact very different as it focused on the migration of Turkish nationals to the Netherlands. Therefore, she analysed Decision 3/​80, the European Convention on Social Security, ilo Convention No.118 and the Turkey-​Netherlands bilateral agreement. Finally, the work of Mutual Information System on Social Protection (missoc) is particularly informative with regard to the portability of pension rights. missoc was asked by the European Commission to draft a report in 2013 on ‘The External Aspects of Social Security Coordination’. The report had two aims:  examining whether the national legislation of 32 countries92 permit the export and payment of pension rights outside the EU and examining whether bilateral agreements concluded between the Member States, eea countries and Switzerland with third countries include all EU nationals or only the nationals of the contracting parties within their scope.93 Considering the fact that the missoc study is very much focused on pension rights and on Member States’ bilateral agreements with regard to pension rights, it would be useful for Chapter 3 on India, the usa and Turkey agreements with Belgium, the Netherlands and Germany. The particularities of this research compared to the above-​mentioned scientific contributions is that it aims at providing concrete suggestions on the ­future of a common EU approach to social security coordination with third countries, using India, the usa and Turkey as examples. The detailed comparative legal analysis of the bilateral agreements between India, the usa and Turkey with, each respectively, Belgium, Germany and the Netherlands, is combined with a discussion of all the relevant instruments on social security coordination at European and international level. The result of this combination is two ‘solutions’ or policy options for developing a common EU approach to social security 91 92 93

H. Caglayankaya, Betere coördinatie van socialezekerheidsrechten voor derdelandonderdanen: Een onderzoek aan de hand van case study Turkije (Boomjuridisch 2016). All Member States, the eea countries and Switzerland. missoc, MISSOC Analysis 2013/​2:  External Aspects of Social Security Coordination (2013) 5–​7.

Introduction

21

coordination with third countries. Hence, the goal of this research is to make specific proposals on how a common EU approach could be achieved and what type of content could be included in that common approach. 5

Exclusions from the Scope of the Research

As already indicated, this research is concerned with social security coordination instruments. Coordination of the social security systems do not modify the conditions for access to the social security systems. The conditions for access to social security would still be determined by each States. As a result, this research does not intend to investigate on the specific conditions migrants need to fulfil in order to access social security benefits in particular countries. This research involves a comparative legal analysis of existing social security coordination instruments. The personal scope of the social security coordination instruments analysed in this research is restricted to migrant workers, their family members, as well as refugees and stateless persons. Social security coordination instruments are designed to facilitate labour migration. As a consequence, they are developed for purposes of regular migration. For irregular migrants, the issue rather concerns the access to social security benefits. Besides the fact that this research is not about the question of the conditions for access to social security benefits, the (lack of) access to social security for irregular migrants has already been extensively researched.94, 95 Furthermore, if one discusses the position of refugees or stateless persons, or family members, 94

95

See for example, K. Kapuy, The social security position of irregular migrant workers. New insights from national social security law and international law (Intersentia 2011); G. Vonk & S. Van Walsum, ‘Access denied. Towards a new approach to social protection for formally excluded migrants’, in G. Vonk (Ed.), Cross-​Border Welfare State. Immigration, Social Security and Integration (Social Europe Series 29, Intersentia 2012) 3–​60; P. Schoukens & D. Pieters, ‘Irregular labour migrants and access to social protection’, in G. Vonk (Ed.), Cross-​ Border Welfare State. Immigration, Social Security and Integration (Social Europe Series 29, Intersentia 2012)  63–​90; K.  Kapuy, ‘Irregular migrant workers and social security’, in G. Vonk (Ed.), Cross-​Border Welfare State. Immigration, Social Security and Integration (Social Europe Series 29, Intersentia 2012) 91–​111; S. Carrera & J. Parkin, ‘Protecting and Delivering Fundamental Rights of Irregular Migrants at Local and Regional Levels in the European Union’ (European Union 2011) 1–​32. The situation of asylum seekers is particular as they are not to be considered as irregular migrants. Asylum seekers are in fact persons who are in the process of refugee’s status application. However, similarly to irregular migrants, the main question concerning the social security rights of asylum seekers is a question of access to the rights. For this reason, this research will not include the situation of asylum seekers.

22 

Chapter 1

it would mainly concern the access to social assistance and derived rights for family members. However, the external dimension of EU social security coordination is really about migrant workers. Hence, this research will focus on legislative instruments covering labour migrants from third countries in the EU and EU citizens in third countries. Finally, for reasons of delimiting the scope of this research, this research does not address multilateral agreements on social security coordination that are concluded by several EU Member States with several third countries, outside the EU framework.96 6

Terminology

Throughout this research, the term ‘EU’, ‘Community’ and ‘Union’ are used to refer to the European Union. Their alternative use depends on the Treaties they reflect. The term ‘Member States’ in fact refers to the Member States of the EU.97 Similar to the term ‘Member State’, the term ‘third country’ must be placed in the EU context. ‘Third countries’ are any country besides the Member States of the European Union. Similarly, ‘third-​country nationals’ refers to any individual who is not an EU citizen pursuant Article 21tfeu. The words ‘highly-​skilled’ workers, or ‘high-​skilled’ workers or alternatively ‘highly qualified’ workers are sometimes used in this research. Member States do not always have a definition of ‘highly-​skilled workers’98 and when they have, their definitions do not correspond to one another. For clarity, the definition of ‘highly-​qualified’ workers from the Blue Card Directive will be the reference for this dissertation. According to Article 2(b) and (g) of the Blue Card Directive, ‘highly-​qualified’ can be attested by any higher professional qualifications of at least three years of education meaning ‘any diploma, certificate or other 96

97

98

An example of such a multilateral agreement is the Multilateral Ibero-​American Social Security Agreement signed on 10 November 2007 and entered into force on 1 May 2011 between Spain and Portugal with Argentina, Bolivia, Brazil, Chile, El Salvador, Ecuador, Paraguay and Uruguay. Austria (1995), Belgium (1958), Bulgaria (2007), Croatia (2013), Cyprus (2004), Czech Republic (2004), Denmark (1973), Estonia (2004), Finland (1995), France (1958), Germany (1958), Greece (1981), Hungary (2004), Ireland (1973), Italy (1958), Latvia (2004), Lithuania (2004), Luxembourg (1958), Malta (2004), Netherlands (1958), Poland (2004), Portugal (1986), Romania (2004), Slovakia (2004), Slovenia (2004), Spain (1986), Sweden (1995), and United Kingdom (1973). Belgium does not have any definition of ‘highly-​skilled workers’ nor ‘skilled workers’.

Introduction

23

evidence of formal qualifications issued by a competent authority attesting the successful completion of a post-​secondary higher education programme, namely a set of courses provided by an educational establishment recognised as a higher education institution by the State in which it is situated.’. References to ‘migrant workers’ are used throughout this research. According to Black’s Law Dictionary, migration is the ‘movement (of people or animals) from one country or region to another’. Additionally, ‘migrant’ as ‘a person who moves from place to place, especially to find work’.99 Hence, ‘migrant workers’ is used in this research to designate persons who move from one country to another for the purpose of work. Finally, ‘EU Agreements’ are used in this research to designate international agreements concluded by the EU, together with its Member States or alone, with third countries. 99

B. A. Garner (Ed.), Black’s Law Dictionary (Tenth Edition, Reuters 2014) 1142.

­c hapter 2

The EU Legal Framework on Social Security Coordination Relevant for Third-​Country Nationals When discussing social security coordination at EU level, the first instrument cited in the literature is Regulation 883/​2004 as it constitutes the most comprehensive and complex system of social security coordination worldwide.1 Regulation 883/​2004, together with its implementing Regulation 987/​2009,2 coordinate the social security systems of the Member States for EU citizens, their family members, and stateless persons and refugees moving within the EU. In addition, third-​country nationals who move within the EU and who do not fall within the ambit of Regulation 883/​2004 are covered by Regulation 1231/​2010. Those instruments constitute the EU rules on social security coordination for situations of intra-​EU mobility, meaning situations of mobility within the EU. Those rules constitute the internal dimension to EU social security coordination. Next to that developed system of social security coordination rules governing intra-​ EU mobility, there are also instruments on social security ­coordination covering situations of mobility between the European Union and third-​countries. Such mobility between the European Union and third-​ countries can be called external EU mobility. For situations of external mobility, social security coordination rules are much less developed. Contrary to the Regulations on social security coordination for intra-​EU mobility, instruments covering situations of external mobility are numerous. Additionally, those instruments are not necessarily solely concerned with social security coordination but are in fact often broader agreements with a third country. The instruments relevant for social security coordination in a situation of external mobility constitute the external dimension of EU social security coordination.

1 F. Pennings, ‘Principles of EU coordination of social security’, in F.  Pennings and G.  Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 340; W. van Ginneken, ‘Social Protection for Migrant Workers: National and International Policy Challenges’ 15 European Journal of Social Security (2013) 215. 2 Regulation (EC) No 987/​2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/​2004, [2009] OJ L 284/​1.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_003

The EU legal framework on social security coordination

25

The purpose of this Chapter is to describe and analyse the different instruments of social security coordination at EU level applicable to the situation of third-​country nationals. Section 1 deals exclusively with the EU rules on social security coordination covering situations of intra-​EU mobility. Regulation 1231/​ 2010 is the main instrument governing the situation of third-​country nationals moving within the EU. However, the content of Regulation 1231/​2010 refers mainly to the rules under Regulation 883/​2004. Therefore, Section 1 comprises a description and analysis of both Regulation 1231/​2010 and Regulation 833/​2004. Section 2 concerns those instruments of the external dimension of EU social security coordination. Such instruments can be divided into two categories: the agreements concluded by the European Union with third-​countries (Section 2.1) and the EU migration Directives (Section 2.2.). The agreements concluded by the European Union with third-​countries vary greatly depending on the third-​country with whom the European Union has concluded the agreement. Section 2.1. provides for a ranking of the different agreements starting with the agreements that grant the most extensive rights to third-​country nationals in the field of social security coordination and ending with those agreements that contain little reference to social security coordination. This ranking illustrates the differences in content of those bilateral agreements. Additionally, Section 2.2. also provides for a comparison of the social security coordination found in the EU migration Directives. Concerning social security coordination, all the EU migration Directives only provide for a rule on equal treatment. The degree of equal treatment offered, varies and is compared throughout Section 2.2. Finally, this Chapter ends with a discussion on the Charter of Fundamental Rights in Section 3. The Charter contains a reference to social security in its Article 34 which has an impact on social security coordination with third countries. The Charter is both applicable to situations of intra and external EU mobility. Section 3 therefore starts with an explanation of the scope of application of the Charter in the context of social security coordination with third countries. It then ends with a description of Article 34. 1

The Internal Dimension of EU Social Security Coordination

1.1 History of the EU Rules on Social Security Coordination At its origins, in the 1950’s,3 the European Union was established in order to create an economic community as was reflected by the name chosen back then, the ‘European Economic Community’ (eec). Free movement of workers 3 Treaty of Rome, 1957.

26 

Chapter 2

was part of the eec’s foundations and nowadays still is among the EU’s priorities. With the aim to facilitate free movement of workers, the eec decided that measures should be taken in the field of social security coordination.4 Despite the fact that there were already bilateral agreements between the Member States on social security coordination,5 Regulation 36 and its implementing Regulation 47 were adopted in 19588 in order to create a broader framework of coordination. Soon after the adoption of Regulations 3 and 4, the Court of Justice was asked to interpret those Regulations in preliminary rulings as many ambiguities existed in practice.9 For example, one of the difficulties arising from the application of Regulation 3 concerned its scope of application and the definition of ‘worker’ to which the Court of Justice responded with a very broad definition. Regulation 3 referred to the concept of ‘wage-​earners or assimilated workers’.10 The Court held in Unger that those concepts included ‘all those who, as such and under whatever description, are covered by the different national systems of social security’.11 Consequently, a person fell under the scope of Regulations 3 and 4 if that person was covered by a national social security system.12 After many years of case law, there was a desire to incorporate

4 5

6 7 8

9 10 11 12

The legal basis for social security coordination was already present in the Treaty of Rome in Article 51 (now Article 48 tfeu). For example, Convention générale du 31 mars 1948 entre la France et l’Italie tendant à coordonner l’application aux ressortissants des deux pays de la législation française sur la Sécurité Sociale et de la législation italienne sur les Assurances sociales et les prestations familiales. Council Regulation No 3 on social security for migrant workers, [1958] OJ L 30/​561. Council Regulation No 4 fixing the implementing procedure and supplementing provisions of Regulation No 3, [1958] OJ L 30/​597. The texts of the Regulations No 3 and 4 were actually negotiated under the European Coal and Steel Community framework with the help of the ilo. It was however adopted under the structure of the eec as the Treaty of Rome was signed in the meantime. This context explains why the Regulations were so quickly adopted after the signature of the Treaty of Rome. S. Roberts, ‘A short history of social security coordination’, in Y. Jorens (Ed.), Report of the conference celebrating the 50th Anniversary of the European Coordination of Social Security (European Union 2010) 17. See, for example, Case C-​ 44/​ 65 Hessische Knappschaft v Maison Singer et fils, ECLI:EU:C:1965:122. Article 19(1) of Regulation 3. Case C-​75/​63 Unger v Bedrijfsvereniging voor Detailhandel en Ambachten, ECLI:EU:C:1964:19, para.185. S. Van Raepenbusch considers that this jurisprudence actually ‘foreshadowed, almost 30 years in advance, the establishment of European citizenship’ in the field of social security. See S. Van Rapenbusch, ‘The role of the Court of Justice in the development of social security law of persons moving within the European Union’, in Y. Jorens (Ed.), Report of

The EU legal framework on social security coordination

27

those jurisprudential developments within EU legislation13 as well as include the developments that took place in national systems.14 Consequently, Regulation 1408/​71 was adopted.15 Regulation 1408/​71 enshrined the very broad definition of worker based on whether the worker is subject to a national social security system.16 In 1981 and then in 1999, self-​employed persons and students were respectively added to the personal scope of Regulation 1408/​71.17 Additionally, the Court of Justice interpreted Regulation 1408/​71 as promoting not only free movement of workers18 but also freedom of establishment19 and free movement of persons.20 This broadening of the scope of Regulation 1408/​71 is

13

14

15 16 17

18 19 20

the conference celebrating the 50th Anniversary of the European Coordination of Social Security (European Union 2010) 32. For a discussion on the influence of the Court’s case law on the legislation on social security coordination, see H.  Verschueren, ‘The EU social security co-​ordination system:  a close interplay between the EU legislature and judiciary’ in P. Syrpis (Ed.), The judiciary, the legislature and the EU internal market (Cambridge University Pres, 2012) 177–​204. For an account of the developments that took place under national laws and the adaptability of the Regulation on social security coordination to those developments, See R.  Cornelissen, ‘Achievements of 50  years of European Social Security Coordination’, in Y.  Jorens, Report of the conference celebrating the 50th Anniversary of the European Coordination of Social Security, Prague, May 2009, 62–​63. Council Regulation (eec) No 1408/​71 of 14 June 1971 on the application of social security schemes to employed persons, to self-​employed persons and to members of their families moving within the Community, consolidated version, [1997] OJ L 28/​1. R. Cornelissen, ‘Achievements of 50 years of European Social Security Coordination’, in Y. Jorens (Ed.), Report of the conference celebrating the 50th Anniversary of the European Coordination of Social Security (European Union 2010) 57. Proposal for a Council Regulation (eec) amending Regulation (eec) No 1408/​71 on the application of social security schemes to employed persons, self-​employed persons and to members of their families moving within the Community and Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, [1996] com (1996) 0318 final; Council Regulation (eec) No 2195/​91 of 25 June 1991 amending Regulation (eec) No 1408/​71 on the application of social security schemes to employed persons, self-​employed persons and members of their families moving within the Community and Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, [1991] OJ L 206/​2. See, inter alia, Joined Cases C-​ 393/​ 99 and C-​ 394/​ 99 Hervein and Others, ECLI:EU:C:2002:182. See, inter alia, Case C-​202/​97 FTS, ECLI:EU:C:2000:75, para. 28; Case C-​56/​01 Inizan, ECLI:EU:C:2003:578, paras. 21 and 25; Case C-​145/​03 Keller, ECLI:EU:C:2005:211, para. 46; Case C-​372/​04 Watts, ECLI:EU:C:2006:325, para. 54. See, inter alia, Case C-​135/​99 Elsen, ECLI:EU:C:2000:647; Case C-​368/​98 Vanbraekel and Others, ECLI:EU:C:2001:400, para. 32; Case C-​56/​01 Inizan, ECLI:EU:C:2003:578, paras. 21 and 25; Case C-​145/​03 Keller, ECLI:EU:C:2005:211, para. 46; Case C-​372/​04 Watts, ECLI:EU:C:2006:325, para. 54.

28 

Chapter 2

an example among many others21 showing that the several amendments made by the EU legislator coupled with the Court of Justice’s judgments and the lack of explanatory memorandum rendered Regulation 1408/​71 very complex with many exceptions to the general rules.22 Consequently, conferences were held in different Member States in order to understand the complexities and difficulties of Regulation 1408/​71 and to propose a new instrument.23 In 1998, the European Commission proposed a new regulation on social security coordination.24 Whereas most of the content of the proposal was politically too sensitive,25 certain elements brought consensus.26 Regulation 883/​2004 was then adopted on the 29th April 2004 and published in the Official Journal on the 30th April 2004. The timing for publication was not accidental as on the 1st of May 2004, 10 new Member States acceded to the EU and had then no possibility to oppose the new Regulation as it had become part of the acquis communautaires.27, 28 Even though Regulation 883/​ 21 22

23 24

25

26 27 28

For examples of other changes brought by Regulation 1408/​71, See F.  Pennings, ‘The European Commission Proposal to Simplify Regulation 1408/​71’European Journal of Social Security (2001) 45–​58. F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015) 19–​21. For an overview of some of the controversial elements in Regulation 1408/​71 and the case law of the Court, see V. Paskalia, ‘Co-​ordination of Social Security in the European Union: An Overview of recent case law’ Common Market Law Review (46, 2009) 1177–​1218. See the final report concerning the conferences in D. Pieters (Ed.), The Coordination of Social Security at Work (acco 1998). Proposal for a Council Regulation (eec) amending Regulation (eec) No 1408/​71 on the application of social security schemes to employed persons, self-​employed persons and to members of their families moving within the Community and Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, [1996] COM (1996) 0318 final; For comments on the proposal, See F.  Pennings, ‘The European Commission Proposal to Simplify Regulation 1408/​71’European Journal of Social Security (2001) 45 ff. For an overview of the differences between Regulation 1408/​ 71 and Regulation 883/​2004, See F. Pennings, ‘Conclusion: Simplification, Modernisation and Regulation883/​2004’ European Journal of Social Security (2009) 235 ff. For example, the Commission Proposal of 1996 had a broad material scope which was not limited to specified risks, it would have referred to all social security legislation. This proposal did not survive. See See F. Pennings, ‘Conclusion: Simplification, Modernisation and Regulation883/​2004’ European Journal of Social Security (2009) 237. See Council of the EU, Press Release PRES/​2001/​451, ‘2392nd Council Meeting on Employment and Social Policy’. F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015) 21. Similar timing was observed for Directive 2004/​38 which was adopted on the 29th April 2004 and published one day later in the Official Journal. Directive 2004/​38/​EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the  Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/​68 and repealing Directives 64/​

The EU legal framework on social security coordination

29

2004 entered into force on the 20th day after its publication in the Official Journal, it only became applicable after the implementing Regulation 987/​2009 entered into force, on 1 May 2010.29 Currently, Regulation 883/​2004 and Regulation 987/​2009 are the core instruments on coordination of social security between the Member States of the European Union. Whereas Regulation 883/​2004 contains the substantive rights and duties, Regulation 987/​2009 deals with detailed coordination rules necessary for the application of Regulation 883/​2004 by the competent social security institutions. Social Security Coordination for Third-​Country Nationals Moving between Member States According to Article 2(1) of Regulation 883/​2004, the Regulation applies to ‘nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors’. Additionally, Article 2(2) of Regulation 833/​2004 provides that it covers also ‘­survivors of persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such persons, where their survivors are nationals of a Member State or stateless persons or refugees residing in one of the Member States’. Hence, Regulation 883/​2004 covers certain categories of third-​country nationals: stateless persons and refugees residing in one of the Member States who are or have been subject to the legislation of one or more Member States, family members of a person to whom the Regulation applies, and survivors of a person to whom the Regulation applies. With regard to family members, the Court of Justice has held that family members can rely on the Regulation30 except for the provisions especially applicable to workers,31 i.e. unemployment benefits.32 Additionally, for the purpose of applying Regulation 883/​2004, the term ‘nationals of a Member State’ must be understood as also 1.2

29 30 31

32

221/​EEC, 68/​360/​EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC and 93/​96/​EEC, [2004] OJ L 158/​77. Article 91, 2nd sentence of Reg. 883/​2004; Case C-​205/​05 Nemec, ECLI:EU:C:2006:705, paras 31 and 32. Regulation 1408/​71 at the time of the judgment (now Regulation 883/​2004). Case C-​308/​93 Bestuur van de Sociale Verzekeringsbank v Cabarnis-​ Issarte, ECLI:EU:C:1996:169 which constitutes a change of jurisprudence from Kermaschek where the Court had found that the only rights that a worker’s family members could derive from Regulation 1408/​71 were derived rights (Case C-​40/​76 Kermaschek v Bundesanstalt für Arbeit, ECLI:EU:C:1976:157). Case C-​189/​00 Ruhr, ECLI:EU:C:2001:583.

30 

Chapter 2

including the nationals of the eea States as well as Swiss nationals according to the Court’s cases in UK v. Council (eea) and UK v. Council (Swiss Agreement).33 Finally, it must be noted that in order to be able to be covered by Regulation 883/​2004, the national of a Member State must be a national at the moment of work, payment of benefits or acquisition of benefits.34 In conclusion, it must be said that Regulation 883/​2004 does not apply to third-​country nationals in general but only to specific categories of third-​country nationals. Regulation 859/​2003,35 later replaced by Regulation 1231/​2010,36 has been adopted specifically to cover the situation of those third-​country nationals who were not already covered by Regulation 1408/​71, later replaced by Regulation 883/​2004. Consequently, Regulation 859/​2003 and then Regulation 1231/​ 2010 were adopted with the aim of extending the rules of Regulation 1408/​71 and then Regulation 883/​2004 to third-​country nationals legally resident in the Member States. The inclusion of third-​country nationals in the system of the Regulation 1408/​71, and then Regulation 883/​2004, was a difficult step forward.37 Several proposals were made38 but were all rejected. It was only in 2003 that 33 34 35

36

37

38

Cases C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97.; those cases are discussed in details in Chapter 2 in pp. 65, 76–​77, 98, and in Chapter 5 in pp. 251, 253–​255, 283. Case C-​10/​78 Belbouab, ECLI:EU:C:1978:181. Regulation (EC) No 859/​2003 of 14 May 2003 extending the provisions of Regulation (eec) No 1408/​71 and Regulation (eec) No 574/​72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, [2003] OJ L 124/​1. Regulation (EU) No 1231/​2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/​2004 and Regulation (EC) No 987/​ 2009 to nationals of third countries who are not already covered by these Regulations solely on the grounds of their nationality, [2010] OJ L 344/​1. For a critical analysis of the exclusion of third-​country nationals from the EU rules on social security coordination and a detailed account of the historical developments leading to the adoption of Regulation 859/​2003 and, See H. Verschueren, ‘EC social security coordination excluding third country nationals: still in line with fundamental rights after the Gaygusuz judgment?’ Common Market Law Review (1997) 991–​1017; R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 354–​362. Amended proposal for a Council Regulation (EC) amending Regulation (eec) No 1408/​ 71 on the application of social security schemes to employed persons, to self-​employed persons and to members of their families moving within the Community, Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, Regulation (eec) No 1247/​92 amending Regulation (eec) No 1408/​71 and Regulation (eec) No 1945/​93 amending Regulation (eec) No 1247/​92, [1995] OJ C 242/​7; Proposal for a Council Regulation (EC) amending Regulation (eec) No 1408/​71

The EU legal framework on social security coordination

31

Regulation 859/​2003 was adopted. The reason for the late adoption of this Regulation was a long discussion about its potential legal basis.39 When the European Commission introduced a proposal in 1997 to extend Regulation 1408/​71 to third-​country nationals, it based its proposal on Article 51 EC (now Article 48 tfeu). Three Member States40 strongly opposed this legal basis. Their main argument was that Article 51 EC was dependent on Article 48 EC (now Article 45 tfeu) as those articles were under the same heading. The three opposing Member States argued that Article 51 EC could only be used for nationals of a Member State who enjoyed free movement rights.41 The Khalil judgment42 by the Court of Justice was used to support this position. In Khalil, the Court was asked whether Article 51 EC was a sufficient legal basis for the inclusion of stateless persons and refugees within the scope of Regulation 1408/​71. The Court accepted the use of Article 51 EC (now Article 48 tfeu) as a legal basis for situations covering stateless persons and refugees but to the extent that Regulation 1408/​71 only applied to a ‘very restricted category of persons’.43 F.  Pennings considers that the Khalil judgment by the Court of Justice confirms that Article 51 EC (now Article 48 tfeu) cannot serve as a legal basis for third-​country nationals.44 R. Cornelissen is more nuanced and deduces from the Khalil judgment that Article 51 EC was not an appropriate legal basis for the extension of Regulation 1408/​71 to the very large category of third-​country nationals residing legally in the Member States.45 The Khalil judgment coupled with the introduction, in the Amsterdam Treaty, of a specific legal basis in Article 63 EC permitting the adoption of asylum and immigration policies for third-​country nationals led to the dismissal

39 40 41 42

43 44 45

as regards its extension to nationals of third countries, [1998] OJ C 6/​15; Proposal for a Council Regulation (EC) on coordination of social security systems, [1999] OJ C 38/​1010. A detailed discussion on the potential legal basis for adopting instruments on social security coordination rules applicable to third-​country nationals is conducted in Chapter 5 in pp. 239–​261. Denmark, UK and Ireland. R. Cornelissen, ‘How Difficult Is It to Change EU Social Security Coordination Legislation? A Story of Changing Legal Basis’ Pravnik, Revija za pravno teorijo in prakso (2012) 62. Joined Cases C-​95/​99 to C-​98/​99 and C-​180/​99 Khalil, ECLI:EU:C:2001:532. See S. Peers, ‘Joined Cases C-​95/​99 to 98/​99, Mervett Khalil and Others v.  Bundesanstalt für Arbeit and Landeshauptstadt Stuttgart and Case C-​180/​99, Meriem Addou v.  Land Nordrhein-​ Westfalen, Judgment of the Full Court of 11 October 2001[2001] ECR I-​74 13’ 39 Common Market Law Review (2002) 1395–​1406. Joined Cases C-​95/​99 to C-​98/​99 and C-​180/​99 Khalil, ECLI:EU:C:2001:532, para.57. F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015) 16. R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 357.

32 

Chapter 2

of Article 51 EC as the legal basis for the extension of Regulation 1408/​71 to third-​country nationals.46 Consequently, in 2002, the European Commission adopted a new proposal based on Article 63(4) EC to extend the rules on social security coordination for nationals of the Member States to third-​country nationals.47 Article 63(4) EC required unanimity in the Council and a consultation of the European Parliament.48 The European Commission had to convince the European Parliament that the adoption of a Regulation under Article 63 EC was not a way of circumventing its role as a co-​legislator under Article 51 EC as the content of the proposal for the Regulation in fact referred extensively to Regulation 1408/​71, which was based on Article 51 EC.49 Ultimately, the European Commission’s proposal led to the adoption of Regulation 859/​2003 based on Article 63(4) EC (now Article 79 tfeu).50 After the replacement of Regulation 1408/​71 by Regulation 883/​2004, there was a need to change Regulation 859/​2003 to include the new rules of Regulation 883/​2004. Like the extension of the rules of Regulation 1408/​71 to third-​ country nationals in Regulation 859/​2003, the extension of the rules contained in Regulation 883/​2004 to third-​country nationals proved to be a difficult political process.51 Regulation 1231/​2010 was finally adopted on 24th November 2010 and published in the Official Journal on 29th December 2010.

46 47 48 49 50

51

R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 355 and 358. Proposal for a Council Regulation extending the provisions of Regulation (eec) No 1408/​ 71 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality, [2002] OJ C 126/​388. With the Lisbon Treaty, Article 79(2) tfeu (old Article 63(4) EC) requires qualified majority voting instead of unanimity in the Council. Additionally, the European Parliament consultation has evolved in a position of a co-​legislator. R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 358. This article entails that Denmark is not participating in this legislation in accordance with Protocol No 22 of the tfeu. Article 63(4) tec (now Article 79 tfeu) also gives the possibility to the United Kingdom, Ireland to opt-​in to the system which they chose to do (Recital 19 of the Preamble of Regulation 859/​2003). The positions of these three Member States (Denmark, United Kingdom and Ireland) in Regulation 1231/​2010 (the successor of Regulation 859/​2003) are later discussed in the section on the personal scope under Regulation 1231/​2010, pp.29–​32. It only became possible to adopt Regulation 1231/​2010 after the entry into force of the Lisbon Treaty where the unanimity voting requirement was replaced by the qualified majority voting. See F. Pennings, European Social Security Law (Fifth Edition, Intersentia 2010)  42; S.  Peers, EU Immigration and Asylum Law (Text and Commentary):  Second Revised Edition, Volume 2: EU Immigration Law (Brill Nijhoff 2012) 355–​358.

The EU legal framework on social security coordination

33

1.3 The Coordination Rules under Regulation 1231/​2010 Regulation 1231/​2010 contains only three articles. Article 1 provides that Regulation 883/​2004 and its implementing Regulation52 should apply to third-​ country nationals who are not already covered by those Regulations solely on the grounds of their nationality, as well as to members of their families and to their survivors, provided that they are legally resident in the territory of a Member State and are in a situation which is not confined in all respects within a single Member State. Hence, it is clear that in order to understand what Regulation 1231/​2010 entails for third-​country nationals, one must know the rules of Regulation 883/​2004.53 1.3.1 Personal Scope According to its Article 1, Regulation 1231/​2010 applies to all third-​country nationals who are not already covered by Regulation 883/​2004 and 987/​2009. It also provides that in order to benefit from the rules of Regulations 883/​2004 and 987/​2009, third-​country nationals need to fulfil certain requirements. First, they must be legally resident in the territory of a Member State. The concept of ‘legally resident’ has an autonomous meaning under Regulation 1231/​2010.54 This legal residency requirement can be acquired through EU ­instruments such as the Blue Card Directive,55 the Long-​Term Residence ­Directive,56 or the Researcher Directive.57 It can also be acquired through international or national immigration rules.58 This first requirement already shows that the social security situation of a third-​country national will be dependent upon his/​her immigration status, i.e. on whether he/​she has a lawful residence 52 53

54 55 56 57 58

Regulation 987/​2009. It is beyond the purpose of this research to fully describe the rules under Regulation 883/​ 2004. For a detailed account of the rules contained in Regulation 883/​2004, See M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​ 2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015); F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015). Case C-​477/​17 Raad van bestuur van de Sociale verzekeringsbank v D. Balandin and Others, ECLI: EU: C:2019:60, para.29. Council Directive 2009/​50/​EC of 25 May 2009 on the conditions of entry and residence of third-​country nationals for the purpose of highly qualified employment, [2009] OJ L 155/​17. Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents, [2004] OJ L 16/​44. Council Directive 2005/​71/​EC on a specific procedure admitting third-​country nationals for purposes of scientific research, [2005] OJ L289/​15. R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 359.

34 

Chapter 2

status.59 In the recent case of Balandin, the Court had to deal with the complex situation where third-​country nationals are not really legally residing in any of the Member States of the EU given the fact that they are constantly moving for the purpose of work. In Balandin, the third-​country nationals were employed by an undertaking established in the Netherlands, Disney On Ice, for the purpose of doing shows in several Member States (i.e. mostly in France and Germany). The third-​country nationals, despite staying legally on the basis of visas and working legally in the Member States, kept their legal residence in their country of origin (i.e. Russia and Ukraine). Nonetheless, the Court held that third-​country nationals who are employed by an undertaking established in the Netherlands, stay and work legally in the territory of the Member States in which they provide their shows, can be considered as ‘legally resident in the territory of a Member State’ under Article 1 of Regulation 1231/​2010.60, 61 The second requirement is that the situation of a third-​country national must not be confined within the territory of one Member State.62 Hence there must be a cross-​border element between at least two Member States.63 For example, a third-​country national worker who comes from India and arrives in the Netherlands does not benefit from the rules under Regulation 1231/​2010 if that person does not move to another Member State. This example is similar to the situation of the Khalil case.64 In Khalil and others, Palestinian migrants were refused access to child benefits in Germany and claimed that this refusal was a violation of the non-​discrimination rule contained in Article 3 of Regulation 1408/​71. The Court of Justice however found that the Regulation was not

59

60 61

62 63

64

For a discussion on the interactions between immigration rules and social security, see G. Vonk and S. van Walsum, ‘Access Denied. Towards a New Approach to Social Protection for Formally Excluded Migrants’, in G.  Vonk (Ed.), Cross-​Border Welfare State (Social Europe Series 29, Intersentia 2012) 21–​23. Case C-​477/​17 Raad van bestuur van de Sociale verzekeringsbank v D. Balandin and Others, ECLI: EU: C:2019:60, para.45. The AG reached the opposite conclusion given the fact that the third-​country nationals could not benefit from any legislation on legal migration but were only in the EU thanks to a Visa permit. Opinion of Advocate General Wahl in Case C-​477/​17 Balandin and Others, ECLI:EU:C:2018:783. The recent judgment of the Court in the Jahin case confirms that the rules of Regulation 1231/​2010 and Regulation 883/​2004 do not apply to a person who moves between a Member State and a third country. Case C-​45/​17 Jahin, ECLI:EU:C:2018:18. Recital 12 of Regulation 1231/​2010 makes clear that Regulations 883/​2004 and 987/​ 2009 do not apply to situations confined in one Member States. This is the case for example when a third-​country national comes to a Member State and never leaves that Member State. See for example, Case C-​276/​06 El Youssfi, ECLI:EU:C:2007:215. Joined Cases C-​95/​99 and 98/​99 Khalil and Others, ECLI:EU:C:2001:532.

The EU legal framework on social security coordination

35

applicable because they had never moved within the EU but came directly from Palestine to Germany. Hence, the situation was solely confined to the territory of Germany. Comparably, in the case of Hadj Ahmed,65 the Court had to decide on whether the two conditions were fulfilled for Regulation 859/​2003 to apply. Although the questions referred to the Court were in fact asking whether Mrs Hadj Ahmed and her daughter could be considered as a ‘family member’ under Regulation 1408/​71, the Court examined also whether Mrs Hadj Ahmed and her daughter could fall within the scope of Regulation 859/​2003. As to the first condition, Mrs Hadj Ahmed and her daughter were both legally resident in Belgium. Concerning the second condition, Mrs Hadj Ahmed and her daughter had only links with one third-​country (Algeria) and one Member State (Belgium). Therefore, they could not rely on Regulation 859/​2003 and could not have the rules of Regulation 1408/​71 extended to them.66 Whereas the cross-​ border element must be between at least two Member States, the notion of ‘cross-​border’ is not interpreted strictly by the Court of Justice.67 Indeed, it is sufficient that there is an element connecting the person to the social security of more than one Member State. For example, in the Laumann case concerning family benefits, the Court of Justice found a sufficient intra-​community link when the children are in another Member State than the parent.68 In addition to the restrictions created by the personal scope of Regulation 1231/​2010, that Regulation also does not apply to some third-​country nationals as a result of its legal basis. As Regulation 1231/​2010 is based on Article 79 tfeu, Denmark is not bound by that Regulation.69 Hence, for example, a third-​country national from India who lives for several years in France and then moves to Denmark cannot rely on the rules of Regulation 1231/​2010 (and neither on the rules of Regulation 883/​2004).70 In addition, whereas the United Kingdom and Ireland exercised their possibility to opt-​in to Regulation 859/​ 2003;71 the United Kingdom did not opt-​in to Regulation 1231/​2010.72 This implies that Regulation 1231/​2010, and thereby the rules of Regulation 883/​2004, 65 66 67 68 69 70 71 72

Case C-​45/​12 Hadj Ahmed, ECLI:EU:C:2013:390. Case C-​45/​12 Hadj Ahmed, ECLI:EU:C:2013:390, para.33. G. Vonk, ‘Social Security Rights of Migrants:  Links between the Hemispheres’, in R.  Blanpain (Ed.), Social Security and Migrant Workers: Selected Studies of Cross-​Border Social Security Mechanisms (Kluwer Law International 2014) 59. Case C-​115/​77 Laumann, ECLI:EU:C:1978:71. Recital 19 of the Preamble of Regulation 1231/​2010. That third-​country nationals will have to rely on bilateral agreements (if there are any) concluded by those States. Recital 18 of the Preamble of Regulation 859/​2003. Recital 18 of the Preamble of Regulation 1231/​2010.

36 

Chapter 2

do not apply to third-​country nationals coming from a Member State to the UK (or vice-​versa).73 For example, a third-​country national from India who was in the UK for 3 years and then moves to Belgium falls within the scope of Regulation 859/​2003 and therefore the rules contained in Regulation 1408/​71 still apply to that person. Neither Regulation 859/​2003 nor Regulation 1231/​2010 apply to Norway, Iceland and Liechtenstein (the efta States) nor Switzerland, although the rules contained in Regulation 883/​2004 have been extended to those countries. The consequences of this were seen in the Xhymshiti case.74 Mrs and Mr Xhymshiti were third-​country nationals from Albania living in Germany with their two children. Mr Xhymshiti worked in Switzerland where he paid his social security contributions and received child allowances for his children who were German nationals.75 Mrs Xhymshiti was denied child benefits (‘top-​up’) for her second child from the German authorities on the basis that her husband already received child allowances from Switzerland. Mr and Mrs Xhymshiti wanted to rely on Regulation 1408/​71 so they claimed to fall within the scope of Regulation 859/​2003. The Court of Justice denied that possibility by holding that working in Switzerland was not a factor which extended the situation of Mr Xymshiti beyond the limits of one single Member State.76 Therefore the second condition that requires the elements of the case not to be restricted to one third country and one single Member State was not fulfilled and Mr and Mrs Xhymshiti were not considered to be covered by Regulation 859/​2003 and thereby to have the rules of Regulation 1408/​71 be extended to them. 1.3.2 Material Scope The material scope of Regulation 883/​2004 applies to the persons who fall under the scope of Regulation 1231/​2010. The material scope of Regulation 883/​ 2004 is defined in Article 3 of the Regulation. Article 3(1) provides that the Regulation applies to all legislation concerning social security benefits listed in that provision. There are two cumulative conditions derived from this material scope: first it applies to legislation and second, the legislation must concern social security benefits listed in Article 3(1). First, the term ‘legislation’ is defined in Article 1(l) first sentence of Regulation 883/​2004 as meaning ‘in respect of each Member State, laws, regulations 73 74 75 76

Article 90(1)(a) Regulation 883/​2004. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698. This case is further discussed in Chapter 2, p.69. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, paras. 18–​19. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para.37.

The EU legal framework on social security coordination

37

and other statutory provisions and all other implementing measures relating to the social security branches covered by Article 3(1)’. Article 1(1) further states that the term ‘legislation’ excludes contractual provisions. However, contractual provisions which serve to implement an insurance obligation arising from the laws and regulations referred to above fall within the scope of Regulation 883/​2004. Additionally, contractual provisions which have been subject to a decision by a public authority which makes them obligatory or extends their scope, provided that the Member State concerned makes a declaration to that effect. The declaration must be notified to the President of the European Parliament and to the President of the Council of the European Union and should be published in the Official Journal. So far, the option of using a declaration to make contractual provisions falling within the ambit of Regulation 883/​2004 has not been popular among the Member States.77 Second, legislation covered by Regulation 883/​2004 must concern one of the social security benefits listed under Article 3(1). Those benefits are sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-​ age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits, pre-​retirement benefits, and family benefits. Consequently, benefits not mentioned, such as study grants or housing benefits, are not covered by the Regulation. Whether a particular benefit fits within the category of ‘unemployment benefit’ or within the category of ‘old-​age benefit’ is an important question.78 For example, the classification of a particular benefit determines whether that benefit is exportable or not.79 The classification of a benefit under one of the benefits listed within Article 3(1) does not derive from its classification under national law.80 Even more, any purely formal element of the benefit must not be considered relevant for the classification of the social security benefit.81 Instead, a benefit is to be considered as one of the benefits listed under Article 3(1) when its constituent elements, in particular its purpose and conditions for granting them, 77 78 79 80 81

France has made use of that possibility by means of a declaration concerning its collective agreements on unemployment and supplementary pension schemes. F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015) 53. F. Pennings, European Social Security Law (Fifth Edition, Intersentia 2010) 53. Indeed, the export of unemployment benefits is restricted to up to three months with the possibility to be extended for six additional months (Article 7 in conjunction with Article 63 and 64 of Regulation 883/​2004). Joined Cases C-​245/​94 and C-​312/​94 Hoever and Zachow v Land Nordrhein-​Westfalen, ECLI:EU:C:1996:379. Case C-​171/​82 Valentini, ECLI:EU:C:1983:189, para.13; Case C-​ 406/​ 04 De Cuyper, ECLI:EU:C:2006:491, para.25, Case C-​228/​07 Petersen, ECLI:EU:C:2008:494, para.21.

38 

Chapter 2

are identical.82 Nonetheless, two types of benefits are automatically excluded from the scope of Regulation 883/​2004. The first type of benefits excluded concern the category of family benefits and more particularly the advances of maintenance payments and special childbirth and adoption allowances mentioned in Annex i to the Regulation.83 The second exclusion from the material scope of the Regulation is the exclusion of medical and social assistance.84 Again, whether a benefit will be considered a social assistance benefit rather than a benefit listed under Article 3(1)85 will depend on factors relating to each benefit, in particular its purpose and the conditions for its grant.86 Finally, Article 3(2) provides that the Regulation applies regardless of whether the social security legislation is a general or special scheme, contributory or non-​contributory.87 The fact that Regulation 883/​2004 can apply to special non-​contributory benefit is further stated in Article 3(3) of Regulation 883/​ 2004.88 Article 3(3) provides that special non-​contributory cash benefits covered by Article 70 fall under the scope of Regulation 883/​2004. Article 70 (2) defines special non-​contributory cash benefits. They can be of two types. Either special non-​contributory benefits are supplementary, substitute or ancillary benefits against the risks covered by the branches of social security referred to in Article 3(1) and which guarantee the persons a minimum subsistence income having regard to the economic and social situation in the Member State concerned.89 Or they are benefits designed solely for the specific protection of the disabled, again closely linked to the said person’s social environment in the Member State concerned.90 Special non-​contributory benefits are listed 82

83 84 85 86 87 88

89 90

Joined Cases C-​245/​94 and C-​312/​94 Hoever and Zachow v Land Nordrhein-​Westfalen, ECLI:EU:C:1996:379, para.17; For a more detailed discussion on the different classification of the benefits under Regulation 883/​2004, See M. Fuchs, ‘Article 3: Material scope’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 82–​93. Article 1(z) Regulation 883/​2004. See Article 3(5) Regulation 883/​2004. A doctrinal discussion can be found in M. Fuchs, ‘Article 3: Material scope’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 95–​97. Case C-​139/​82 Piscitello, ECLI:EU:C:1983:126, para.10. It also adds that it applies to schemes relating to the obligation of an employer or shipowner (Article 3(2) of Regulation 883/​2004). For a discussion on special non-​contributory benefits in Regulation 883/​2004 as compared to in Regulation 1408/​71, see H. Verschueren, ‘Special non-​contributory benefits in regulation 1408/​71, regulation 883/​2004 and the case law of the ECJ’ European Journal of Social Security (2009) 217–​234. Article 70(2)(a)(i) of Regulation 883/​2004. Article 70(2) (a)(ii) of Regulation 883/​2004.

The EU legal framework on social security coordination

39

in Annex x and they must be financed exclusively from compulsory taxation intended to cover general public expenditure and the conditions for providing and for calculating the benefits are not dependent on any contribution in respect of the beneficiary.91 1.3.3 Rules Determining the Law Applicable In Regulation 883/​2004, the rules on the law applicable are contained in Articles 11 to 16. The purpose of those rules is to avoid situations of overlapping of applicable provisions of national legislation to the same person moving between Member States, the so-​called positive conflict of law.92 Additionally, they also serve the purpose of preventing the fact that a person might not be covered by any social security system of any Member State because no legislation is applicable to that person, a situation of negative conflict of law.93 1.3.3.1 The Exclusivity Effect of the Conflict Rules of Regulation 883/​2004 Article 11(1) of Regulation 883/​2004 implies that the conflict rules of the Regulation have an exclusive effect. It means that only one Member State’s legislation is applicable to one situation at a given time, the ‘Single State rule’. The Member State whose legislation is applicable is called the competent State. The competent State is determined by way of the competent institution which is, pursuant to Article 1(q) (i), the institution in which the person is insured at the time of application for the benefits.94 The exclusivity effect of the legislation applicable is of foremost importance in cases where the person concerned has legal ties with different Member States, such as residence in Member State A and working in Member State B, and would be subject to the legislation of both Member States at the same time on the basis of national law. The exclusivity effect permits the overruling of this situation as being subject to the

91 92

93

94

Article 70(2)(c) and (b) of Regulation 883/​2004. Recital 15 of the Preamble of Regulation 833/​2004; H-​D. Steinmeyer, ‘Determination of the legislation applicable’, in M.  Fuchs & R.  Cornelissen (Eds), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 145–​146. Case C-​2/​89 Bestuur van de Sociale Verzekeringsbank v Kits van Heijningen, ECLI:EU:C:1990:183, para.12; Case C-​196/​90 Fonds voor Arbeidsongevallen v De Paep, ECLI:EU:C:1991:381, para.18.; H-​ D. Steinmeyer, ‘Determination of the legislation applicable’, in M.  Fuchs & R.  Cornelissen (Eds), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 145–​146. Nonetheless, in particular circumstances defined in Article 1(q) (ii), (iii) (iv), the competent institution might be designated on the basis of other criteria.

40 

Chapter 2

legislation of two or more Member States at the same time by allowing only one Member State to be competent to levy contributions95 and to grant the benefits.96 It used to be considered, following the Ten Holder judgment, that the exclusivity effect was absolute. This implied that, even in cases where the legislation of the competent State was less advantageous than the legislation of a non-​ competent State, the competent State remained the only one competent. In Ten Holder, a Dutch lady, resident in the Netherlands, worked in Germany for a number of years until she became ill. As she was last employed in Germany, Germany was the competent State and she benefited from German sickness benefits. Pursuant to the expiry of the German sickness benefits, she asked for the Dutch sickness benefits available for residents. However, the Court found that, as Germany was the competent State, the Netherlands could not grant her the sickness benefits. Germany was to remain the competent State until she took up employment in another Member State.97 In its most recent case law, the Court of Justice reduced the meaning of the exclusivity effect to the point that it cannot be considered as absolute anymore. The first judgment of the Court of Justice that undermined the absolute character of the exclusivity principle was the Bosmann judgment.98 Mrs Bosmann was living in Germany with her children for whom she received child benefits from the German authorities. Upon taking up employment in the Netherlands, the Netherlands became the competent Member State. However, under Dutch law, Mrs Bosmann was not entitled to child benefits as her children were aged over 18. Mrs Bosmann therefore suffered from a loss of social security benefit due to the fact that she took employment in another Member State than her State of residence. The question arose whether the German authorities could grant Mrs Bosmann child benefits despite the fact that Germany was not the competent Member State according to the rules of the Regulation 1408/​71. First, the Court found that nothing in Community law required the German authorities to grant the child benefits. Second, it held that the German authorities cannot be precluded from the possibility

95 96 97 98

Case C-​102/​76 Perenboom, ECLI:EU:C:1977:71. Case C-​302/​84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging, ECLI:EU:C:1986:242. Case C-​302/​84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging, ECLI:EU:C:1986:242, paras.14 and 23. Case C-​352/​06 Bosmann, ECLI:EU:C:2008:290. For a detailed analysis of the Bosmann case, see A-​P. van der Mei & G. Essers, ‘Case C-​352/​06, Brigitte Bosmann v.Bundesagentur für Arbeit-​Familienkasse Aachen, judgment of the Court (Grand Chamber) of 20 May 2008’ 46 Common Market Law Review (2009) 959–​972.

The EU legal framework on social security coordination

41

to grant the benefits as it was apparent that Mrs Bosmann may be entitled to those benefits under German legislation.99 By using Article 42 EC (now Article 45 tfeu) as a tool to interpret Regulation 1408/​71, the Court found that ‘migrant workers must not lose their right to social security benefits or have the amount of those benefits reduced because they have exercised the right to freedom of movement conferred on them by the Treaty’.100 As a result, the Court held that a Member State cannot be deprived of having the possibility to grant child benefits to its residents.101 The Court confirmed its Bosmann ruling in Hudzinski and Wawrzyniak.102 The joint cases concerned Polish nationals living in Poland who worked in Germany (as seasonal workers and posted workers) for a certain time during which they were subject to unlimited income tax liability. Both of the claimants applied for child benefits, for children living in Poland, for the period of work they completed in Germany. In both cases, Germany was not the Competent State under the system of Regulation 1408/​71. The first difference with Bosmann was that the workers in this case did not suffer any disadvantage by reason of their temporary work as they retained their rights to child benefits in the Competent State, Poland.103 The second difference with Bosmann was that the connecting factor with the non-​competent State was much more remote as the children were resident in Poland and the relevant connecting factor for German law was the fact that they were subject to unlimited tax liability. First, the Court of Justice found that there was no obligation under EU law for the German authorities to grant the child benefits to the claimants.104 As to the question of whether the German authorities were precluded from granting the benefits, the Court recalled Bosmann so that the provisions of Regulation 1408/​71 must be interpreted in light of Article 48 tfeu and not resulting in a situation where the migrant worker loses his/​her right to social security benefits because he/​she has exercised the right to free movement.105 The Court added that the principle of exclusive applicability of the legislation

99 100 101 102 103 104 105

Case C-​352/​06 Bosmann, ECLI:EU:C:2008:290, para.28. Case C-​352/​06 Bosmann, ECLI:EU:C:2008:290, para.29. Case C-​352/​06 Bosmann, ECLI:EU:C:2008:290, para.30. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, para.29. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, para.45. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, para.46.

42 

Chapter 2

designated by Regulation 1408/​71 cannot serve as a basis for precluding a non-​ competent State from granting a social security benefits under its national law.106 Concerning the factual differences between this case and the Bosmann case, the Court considered that the fact that the claimants did not suffer from any disadvantage in exercising their free movement right did not preclude the non-​competent State from granting those benefits under its national law.107 For the Court, the most important principle is that the provisions of Regulation 1408/​71 interpreted in light of Article 48 tfeu must ‘contribute to the establishment of the greatest possible freedom of movement for migrant workers’.108 Concerning the connecting factor, for workers who are not resident, the German law on child benefits provides for entitlement subject to unlimited tax liability.109 The fact that Bosmann only refers to a residence requirement as a connecting factor with the non-​competent State does not mean that other connecting factors cannot be found.110 The Court then concluded that the German authorities were not precluded from granting the child benefits to the claimants. Additionally, the Court was asked whether the rules under Regulation 1408/​71 and the Treaty rules on the free movement of workers and the principle of non-​discrimination precluded the rule such as the German law on child benefits which excluded entitlement to the benefits in cases where the worker could be granted comparable benefits from another State.111 In that regard, the Court recalled that Article 45 to 48 tfeu, and Regulation 1408/​71, are intended in particular to prevent the situation in which a worker who has exercised his right to free movement is treated, without objective justification, less favourably than one who has completed his entire career in one Member State.112 The exclusion from entitlement provided by German law is a substantial disadvantage for migrant workers compared to workers

106 107 108 109 110 111 112

Joined Case para.49. Joined Case para.51. Joined Case para.53. Joined Case para.60. Joined Case para.62. Joined Case para.69. Joined Case para.80.

C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339,

The EU legal framework on social security coordination

43

who completed their entire career in Germany.113 Furthermore, this less favourable treatment is not justified by any objective reasons.114 As a result, the Court held that the Treaty rules on free movement of workers precluded the application of the German law providing for the exclusion from child benefits for workers who could get comparable benefits from other States.115 The consequence in casu was that Germany was then obliged to provide the child benefits to Mr Wawrzyniak. Lastly, the issue of the need for a sufficient connecting factor with the non-​ competent State returned to the Court in the B case.116 The B case concerned Czech nationals living in France with their daughter, born in France. Despite living in France, they retained houses in the Czech Republic and were registered as residents there in accordance with Czech law. Mrs B received several benefits in France such as maternity benefits and specific family benefits called ‘prestation d’acceuil du jeune enfant’. Once those French family benefits were exhausted, she applied for family benefits in the Czech Republic. According to Czech law, any person registering as a permanent resident in Czech Republic is entitled to those family benefits. However, the Czech authorities considered that they were not the competent State under Regulation 1408/​71 as the ‘centre of interests’ of Mrs B. was in France.117 Contrarily to Bosmann, there was no residence link with the non-​competent State. Additionally, in contrast to Hudzinski and Wawrzyniak, there was no link with regard to the unlimited income tax. In B, the only link with the Czech Republic was that Mrs B and her husband had houses there and continued to be registered as residents despite the fact that their habitual residence was in France, where their ‘centre of interests’ was.118 The Court of Justice first confirmed that the competent State under the rules of Regulation 1408/​71 was France and that therefore the question was whether the Regulation precluded the non-​competent State from granting the family benefits under its national law.119 In that regard, the Court of Justice ruled that the non-​competent Member State could not grant the right to family benefits on the basis of its national law when the persons 113 114 115 1 16 117 118 119

Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, para.76. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, paras. 82–​84. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339, para.85. Case C-​394/​13 B, ECLI:EU:C:2014:2199. Case C-​394/​13 B, ECLI:EU:C:2014:2199, para.15. Case C-​394/​13 B, ECLI:EU:C:2014:2199, para.26. Case C-​394/​13 B, ECLI:EU:C:2014:2199, para.22 and 25.

44 

Chapter 2

do not have a ‘close connecting factor’ with the non-​competent Member State concerned.120 From the case of B, it can be deduced that there must be a due account to the ‘specific and particularly close connecting factors’ in order to see whether the non-​competent State is precluded by Regulation 1408/​71 from granting social security benefits on the basis of its national law.121 The ruling of Bosmann and the subsequent case law of the Court implies two things. First, the exclusive effect of the conflict of rules of Regulation 883/​ 2004 does not preclude a non-​competent Member State from granting, under its own national law, benefits to persons with whom there are sufficient connecting factors. Hence, a non-​competent Member State has the power, but not the obligation, to create entitlement to social benefits to a migrant worker with whom there are specific and particularly close connecting factors. Second, if a non-​competent Member State decides to create that entitlement, the conditions of such entitlement should not be less favourable to migrant workers than to workers who did not exercise their free movement rights, without any objective justification. If there are less favourable and no objective justification, the non-​competent Member State will then have a duty to provide for the social benefit to the migrant workers. Finally, it must be said that the Bosmann jurisprudence does not concern the levying of contributions. Hence, a non-​competent Member State is still prevented from levying contributions.122 1.3.3.2 The Binding Effect of the Conflict Rules of Regulation 883/​2004 The binding effect of the conflict rules implies that when the conflict rules of Regulation 883/​2004 designate a Member State as the competent State, that Member State should not exclude the person from its legislation on the basis that the person is lacking a condition for being subject to its legislation. For example, if a Member State requires residence within its territory to be entitled to a certain benefit, such a condition would exclude from entitlement a person who only works in that Member State but resides in another Member State. This residence condition is just an example and would anyway not be in

1 20 121

Case C-​394/​13 B, ECLI:EU:C:2014:2199, para.29. Case C-​394/​13 B, ECLI:EU:C:2014:2199, para.30. This consequence from the B case was later confirmed in Franzen where the Court of Justice further clarified that it was up to national court to decide when there are sufficient connecting factors. Case C-​382/​13 Franzen and Others, ECLI:EU:C:2015:261. 122 A-​P. van der Mei, ‘Overview of recent cases before the European Court of Human Rights and the European Court of Justice (April-​June 2012)’ European Journal of Social Security (2012) 203.

The EU legal framework on social security coordination

45

accordance with Article 7 of Regulation 883/​2004 concerning the waiving of residence clause. 1.3.3.3 The Mandatory Effect of the Conflict Rules of Regulation 883/​2004 The rules determining the applicable legislation to the situation of a person are mandatory. It means that migrant workers cannot claim that they do not want the provisions of Regulation 883/​2004 to be applicable because it does not suit them.123 The rules of Regulation 883/​2004 determining the law applicable are compulsory. It can have the result that the legislation of the Competent State is less favourable than the legislation of the other State, for example the State of residence.124 However, this situation is caused by the application of national law and not directly by Regulation 883/​2004. 1.3.3.4

The Conflict Rules under Regulation 883/​2004: Lex Loci Laboris as a General Rule and Other Specific Rules In general, economically active persons are covered by the legislation of the place where the activity is conducted while non-​economically active persons fall under the legislation of the place of residence in accordance with Article 11(3)(e).125 Hence, the working situation of a person will determine which Member State is competent and therefore which legislation is applicable to his social security. The general rule for economically active persons is the lex loci laboris, the place of work.126 The choice of the lex loci laboris as the general rule for determining the legislation applicable to the situation of a person ensures that every person employed by the same employer should pay the same contributions and should be entitled to the same benefits.127 Indeed, Article 11(3)

123 124 125 126

127

Case C-​160/​96 Molenaar v Allgemeine Ortskrankenkasse Baden-​ Württemberg, ECLI:EU:C:1998:84. See, inter alia, Joined Cases C-​ 393/​ 99 and C-​ 394/​ 99 Hervein and Others, ECLI:EU:C:2002:182. N. Rennuy, ‘The emergence of a parallel system of social security coordination’ 50 Common Market Law Review (2013) 1223. F. Pennings, ‘Principles of EU coordination of social security’, in F. Pennings and G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 331; for a proposal on alternative to the lex loci laboris principle, See F. Pennings, ‘Co-​ordination of Social Security on the Basis of the State-​of-​employment Principle: Time for an Alternative?’ 42 Common Market Law Review (2005) 67–​89. In that context, Recital 17 of the Preamble of Regulation 883/​2004 provides that ‘With a view to guaranteeing the equality of treatment of all persons occupied in the territory of a Member State as effectively as possible, it is appropriate to determine as the legislation

46 

Chapter 2

(a) of Regulation 883/​2004 provides that a person who pursues an activity as employed or self-​employed person in a Member State is subject to the legislation of that Member State. When a migrant worker works only in one Member State, this rule can be easily applied. However, the lex loci laboris rules is not entirely satisfying when the migrant worker works in different Member States or is a posted worker.128 For example, it can happen that the person is working in two or more Member States for the same employer or for different employers. The rule is then that the competent Member State is the one where the worker resides if this person works for a substantial part129 in that Member State.130 If the Member State of residence does not correspond to the place where the person works for a substantial part, the decisive criterion for determining the competent Member State is the Member State where the employer is registered.131 For self-​employed persons, the rules are the same except that the ‘substantial part’ of the economic activities is replaced by the ‘centre of interest’ of his ­activities.132 If the person works in two or more Member States but for an

128

129

130

131

132

applicable, as a general rule, that of the Member State in which the person concerned pursues his/​her activity as an employed or self-​employed person.’ For a complete overview of the specific rules on determining the law applicable contained in Regulation 883/​2004, See the work of R.  Cornelissen & G.  Van Limberghen, ‘Social security for mobile workers and labour law’ in F.  Pennings & G.  Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 360–​380. What constitutes a substantial part is not defined in Regulation 883/​2004 but indications are given by Regulation 987/​2009. Indeed, Article 14(7) and (8) of Regulation 987/​ 2009 provide for criteria to be taken into account in the qualitative assessment of what is a substantial part. According to those provisions, less than 25% of the criteria shall be an indicator that a substantial part of the activities is not being pursued in the relevant Member State. Article 13(1) (a) of Regulation 883/​2004. This rule has been changed by Regulation 465/​ 2012. Prior to the change introduced by Regulation 465/​2012, the situation for person working in two or more Member States depended on whether that person was working for one employer or for more than one employer. Nowadays, with the changes brought by Regulation 465/​2012, there is no more distinction on the number of employers. Regulation (EU) No 465/​2012 of the European Parliament and of the Council of 22 May 2012 amending Regulation (EC) No 883/​2004 on the coordination of social security systems and Regulation (EC) No 987/​2009 laying down the procedure for implementing Regulation (EC) No 883/​2004, [2012] OJ L149/​4. Article 13(1) (b) of Regulation 883/​2004. In case it is difficult to determine where the substantial part the of economic activities are carried out, the competent Member State is agreed upon by the authorities of the different Member States concerned in accordance with Regulation 987/​2009. Article 13(2) (a) and (b) of Regulation 883/​2004. Article 14(9) of Regulation 987/​2009 gives indications on what constitutes the ‘centre of interest’ of a self-​employed person.

The EU legal framework on social security coordination

47

employer established outside the European Union, the competent Member State will always be the one where the worker resides even if no substantial part of the activities are carried out there.133 If the person is employed in one Member State but self-​employed in another, the competent Member State is the one where that person is employed.134 The rationale behind this choice is that most Member States offer better protection for employed persons rather than for self-​employed persons.135 In addition to these examples of variations of the principle of lex loci laboris, there are also specific situations which favour the State of residence as the competent State instead of the State of employment. Those specific situations concern civil servants (Article 11(3)(b)); persons who receives unemployment benefits (Article 11(3)(c) which refers to Article 65); persons called up or recalled for service in the armed forces or for civilian services (Article 11(3)(d)); seamen (Article 11(4)); flight and cabin crew members (Article 11(5)); any other persons (Article 11(3)(e)). A civil servant will be subject to the legislation of the Member State to which the administration employing him/​her is subject.136 This special rule is in fact derived from the State of employment principle as the State who employs the person is the one competent.137 Under Article 11(3)(c) taken in conjunction with Article 65, wholly unemployed frontier workers will have to claim unemployment benefits in the Member State of residence as if they had been subject to the legislation of that Member State during their last activity as an employed or self-​employed persons.138 When a person is called up or recalled for service in the armed forces or for civilian service, it is considered to be a public duty and not an employment relationship between the person and the army. Such a person will be subject to the legislation of the Member State for whom he/​she performs the service in the armed forces or the civilian service.139 Here also, the rule is derived from the State of employment principle. It should be noted that this provision does

1 33 134 135 136 137

Article 14(11) of Regulation 987/​2009. Article 13(3) of Regulation 883/​2004. F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015) 106. Article 11(3)(b) of Regulation 883/​2004. H-​D. Steinmeyer, ‘Article 12: special rules’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A  Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 159–​160. 138 Article 65(5)(a) of Regulation 883/​2004. 1 39 Article 11(3)(d) of Regulation 883/​2004.

48 

Chapter 2

not apply to professional and temporary soldiers who will be covered by the rule on civil servants.140 Seamen, employed or self-​employed on board of a vessel will be subject to the legislation of the Member State whose flag the vessel flies.141 However, when a person works on board of a vessel flying the flag of a Member State but is remunerated by an undertaking whose registered office or place of business is in another Member State, that person will be subject to the legislation of that other Member State if he/​she resides there.142 For example, if a person works on board of a vessel flying the Estonian flag but is resident in Finland and is remunerated by a Finnish undertaking, the competent Member State will be Finland. The situation of flight and cabin crew members was introduced by Regulation 465/​2012 which amended Regulation 883/​2004.143 Flight and cabin crew members will be subject to the legislation of the Member State where the home base is located.144 The ‘home base’ is defined in the Annex of Commission Regulation 8/​2008 replacing Annex iii of Council Regulation 3922/​91 as meaning ‘the location nominated by the operator to the crew member from where the crew member normally starts and ends a duty period or a series of duty periods and where, under normal conditions, the operator is not responsible for the accommodation of the crew member concerned’.145 Under Article 11(3)(e), persons who do not fall under the rules prescribed by Article 11(3)(a) to (d) will be subject to the legislation of the Member State of residence, without prejudice to other provisions of the Regulation guaranteeing them benefits under the legislation of one or more other Member States. A person in such situation will be, for example, an unemployed person who performed previously compulsory military service in another Member State.146 140 H-​D. Steinmeyer, ‘Article 12: special rules’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A  Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 161. 141 Article 11(4) of Regulation 883/​2004. 142 Article 11(4), second sentence of Regulation 883/​2004. 143 Regulation (EU) No 465/​2012 of the European Parliament and of the Council of 22 May 2012 amending Regulation (EC) No 883/​2004 on the coordination of social security systems and Regulation (EC) No 987/​2009 laying down the procedure for implementing Regulation (EC) No 883/​2004, [2012] OJ L 149/​4. 144 Article 11(4) of Regulation 883/​2004. 145 ops 1.1095 (1.7) of SubPart Q in Annex of Commission Regulation (EC) No 8/​2008 of 11 December 2007 amending Council Regulation (eec) No 3922/​91 as regards common technical requirements and administrative procedures applicable to commercial transportation by aeroplane, [2008] OJ L 10/​1. 146 This was the situation that arose in the Adanez-​Vega case (Case C-​372/​02 Adanez-​Vega, ECLI:EU:C:2004:705). This case is discussed by H-​D. Steinmeyer in H-​D. Steinmeyer,

The EU legal framework on social security coordination

49

Finally, the last exception to the lex loci laboris rule is the rule on posted workers contained in Article 12 of Regulation 883/​2004.147 Article 12(1) concerns the situation of employed posted workers whereas Article 12(2) concerns the situation of self-​employed posted workers. Article 12(1) provides that posted workers remain subject to the legislation of the Member State from where they are sent during a period of maximum 24 months. That rule only applies if four conditions are fulfilled: there is an employment relationship with an employer located in a Member State prior to the posting of the worker;148 the conditions of posting are fulfilled; during the posting, the posted worker continues to be in an employment relationship with the same employer; the duration of the posting was determined and does not exceed 24 months. Those conditions are further explained in Article 14 of Regulation 987/​2009. Furthermore, the posted worker should not be sent to replace another posted worker.149 If there was no derogation from the lex loci laboris rule, it would mean that each time a person is posted to another Member State for work new legislation would apply to that person and accordingly he/​she would have to pay premiums without receiving the benefits then as the periods of contribution would be too short to have access to the benefits.150 For those reasons, the derogation from the lex loci laboris is understandable in the context of posted workers

147

148

1 49 150

‘Article 12:  special rules’, in M.  Fuchs & R.  Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 162. For a detailed account of the posting rules under Regulation 883/​2004, See P. Schoukens & D. Pieters, ‘The rules within Regulation 883/​2004 for determining the applicable legislation’ European Journal of Social Security (2009) 82–​88; H-​D. Steinmeyer, ‘Article 12: special rules’, in M.  Fuchs & R.  Cornelissen (Eds.), EU Social Security Law. A  Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 163–​174. It is possible to include a person recruited for the purpose of posting if the person was subject to the legislation of the Member State in which his employer is established for at least 1 month. Article 14(1) of Regulation 987/​2009 and Decision No 2 of the Administrative Commission (Administrative Commission for the Coordination of Social Security Systems, ‘Decision No A2 of 12 June 2009 concerning the interpretation of Article 12 of Regulation (EC) No 883/​2004 of the European Parliament and of the Council on the legislation applicable to posted workers and self-​employed workers temporarily working outside the competent State’, [2010] OJ C 106/​5). Article 12(1) last sentence of Regulation 883/​2004. A-​P.  van der Mei, ‘India-​EU Migration:  the Social Security Rights of Indian Nationals Moving to and within the European Union’, CARIM-​India Research Report (24, 2013) 5.

50 

Chapter 2

1.3.4 Equal Treatment Pursuant to Article 4 of Regulation 883/​2004, persons covered by this Regulation should enjoy the same benefits and be subject to the same obligations under the legislation of any Member States as the nationals thereof. In addition, Recital 8 of the Preamble of Regulation 883/​2004 emphasises that ‘the general principle of equal treatment is of particular importance for workers who do not reside in the Member State of their employment, including frontier workers’. The general principle of equal treatment can also be relied upon by persons who reside outside the EU and who fall under the scope of the Regulation.151 Both direct and indirect discrimination on the basis of nationality are prohibited by Article 4 of Regulation 883/​2004. Direct discrimination arises when there is a clear reference in law to a nationality requirement. Direct discrimination is prohibited unless justified on grounds of public policy, public security or public health. Such grounds are not found in Article 4 of the Regulation but in Article 45 tfeu in the light of which the Regulation must be interpreted.152 Indirect discrimination on the basis of nationality arises when a rule or a practice, despite its neutrality, disadvantages non-​nationals. A typical example of indirect discrimination on the basis of nationality is the requirement of residence in a Member State in order to obtain social security benefits from that State.153 Even though residence requirements do not contain any reference to nationality, it will be more difficult in practice for non-​nationals to fulfil that requirement.154 Indirect discrimination can be objectively justified if the discriminatory treatment is necessary, appropriate and proportional to the aim pursued. Concerning indirect discrimination on the basis of residence, Article 7 of the Regulation concerns the general provision waiving residence requirements. Article 7 provides that cash benefits payable under the legislation of one or more Member States or under this Regulation should not be subject to any reduction, amendment, suspension, withdrawal or confiscation 151 Article 3 of Regulation 1408/​71, the general provision on equal treatment, was restricted to persons resident in the territory of one of the Member States. 152 Case C-​359/​87 Pietro Pinna v Caisse d’allocations familiales de la Savoie, ECLI:EU:C:1989:107; Recitals 1 and 3 of the Preamble of Regulation 883/​2004. 153 Another example: in Commission v France, the Court found that a system of retirement pension points could be fulfilled more easily by national workers compared to workers from other Member States and found indirect discrimination prohibited by Article 48 EC (now Article 45 tfeu). See Case C-​35/​97 Commission v France, ECLI:EU:C:1998:431. 154 F. Pennings, ‘Principles of EU coordination of social security’, in F. Pennings and G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 326.

The EU legal framework on social security coordination

51

on account of the fact that the beneficiary or the members of his/​her family reside in a Member State other than that in which the institution responsible for providing the benefits is situated. This implies that in situations of reduction, amendment, suspension, withdrawal or confiscation of a benefit on the basis that the person resides in another Member State, no objective justification to that discriminatory treatment is allowed under Article 7.155 For all other situations, such as access to social security benefits, the general provision on equal treatment found in Article 4 applies and possible objective justifications can be found.156 In regard to access to social security benefit, the Court held that there is nothing to prevent a Member State from requiring Union citizens who are not economically active to be lawfully resident in its territory in order to be granted a social security benefit.157 This judgment concerned an infringement proceeding brought by the Commission against the United Kingdom for introducing a test of right of residence in order to be granted child benefits constituting indirect discrimination prohibited by Article 4 of Regulation 883/​2004.158 The Court considered this requirement as unequal treatment but recalled that indirect discrimination could be justified if it was appropriate for securing the attainment of a legitimate objective and did not go beyond what was necessary to attain that objective.159 The need to protect the finances of the host Member States justified the requirement of checking the lawful residence of the beneficiary, in particular of a beneficiary who is not economically active.160 However, the requirement of lawful residence must be checked in a proportionate manner. In this case, the Commission did not bring sufficient evidence that the right of residence test was conducted systematically by the UK authorities.161 Since it was only in cases of doubts that the UK authorities would check the right of lawful residence, the Court did not

1 55 Article 7 is later discussed for its relevancy in the context of export of benefits. 156 In relation to that, Recital 16 of the Preamble of Regulation 883/​2004 provides that there is, in principle, no justification for making the access to social security rights dependent on a residency requirement. Nonetheless, Recital 16 further specifies that, in specific cases, the place of residence can be taken into account in particular with regard to benefits linked with the social and economic context of the person. 157 Case C-​308/​14 Commission v UK, ECLI:EU:C:2016:436, para.68; Case C-​140/​12 Brey, EUC:2013:565, para.44; Case C-​333/​13 Dano, ECLI:EU:C:2014:2358, para.83. For a discussion on Brey, See H. Verschueren, ‘Free movement or benefit tourism: the unreasonable burden of Brey’ 16 European Journal of Migration and Law (2014) 147–​179. 158 Case C-​308/​14 Commission v UK, ECLI:EU:C:2016:436,para.74. 159 Case C-​308/​14 Commission v UK, ECLI:EU:C:2016:436, paras.78–​79. 160 Case C-​308/​14 Commission v UK, ECLI:EU:C:2016:436, para.80. 161 Case C-​308/​14 Commission v UK, ECLI:EU:C:2016:436, para.84.

52 

Chapter 2

consider it disproportionate and dismissed the infringement action brought by the C ­ ommission.162 A specific application of the principle of equal treatment can be found in Article 5 of Regulation 883/​2004 which provides for the assimilation of facts, events and benefits schemes. It implies that facts, events and benefits acquired under the legislation of a Member State must be treated as equivalent to facts, events and benefits required by the legislation of the Member State competent. Article 5 is in fact the codification of the Court’s case law on the assimilation of facts, events and benefits schemes.163 The latest ruling on the interpretation of Article 5 of Regulation 833/​2004 is the Knauer case.164 Mr Knauer, resident in Austria, received an Austrian statutory pension and also an old-​age occupational pension from Liechtenstein due to previous employment there. Those two types of pensions had different consequences for the amount of contributions that Mr Knauer was asked to pay to the Health Insurance Scheme from Austria. The Health Insurance Scheme considered that the contributions of Mr Knauer were to be paid also taking into account the monthly pension benefits from his occupational pension in Liechtenstein. The Court of Justice was asked whether the benefits under the occupational pension from Liechtenstein and the benefits under the statutory pension from Austria were to be considered as ‘equivalent benefits’ within the meaning of Article 5(a) of Regulation 883/​2004. The Court of Justice held that the fact that both benefits (old-​age benefits from a statutory scheme and from an occupational scheme) are within the scope of the Regulation does not suffice for making them equivalent.165 ‘Equivalent benefits’ within the meaning of Article 5(a) of Regulation 833/​2004 must mean ‘benefits that are comparable’.166 In order to see whether those benefits are comparable, the aim of the benefits and the legislation which established them must be taken into account.167 In casu, the aim of both 162 For a comment on this case, see H. Verschueren, ‘Recent case before the Court of Justice of the European Union’, 19 European Journal of Social Security (2017) 71–​82. 163 Recital 9 of the Preamble of Regulation 883/​2004 provides that:  ‘the Court of Justice has on several occasions given an opinion on the possibility of equal treatment of benefits, income and facts; this principle should be adopted explicitly and developed, while observing the substance and spirit of legal rulings.’ See for example Case C-​20/​85 Roviello ECLI:EU:C:1988:283; Case C-​28/​00 Kauer, ECLI:EU:C:2002:82; Case C-​373/​02 Öztürk, ECLI:EU:C:2004:232; Case C-​507/​06 Klöppel, ECLI:EU:C:2008:110. 164 Case C-​453/​14 Knauer, ECLI:EU:C:2016:37. A-​P. van der Mei, ‘Overview of recent cases before the Court of Justice of the European Union (January-​June 2016)’ 18 European Journal of Social Security (2016) 309–​319. 165 Case C-​453/​14 Knauer, ECLI:EU:C:2016:37, para.32. 166 Case C-​453/​14 Knauer, ECLI:EU:C:2016:37, para.33. 167 Case C-​453/​14 Knauer, ECLI:EU:C:2016:37, para.34.

The EU legal framework on social security coordination

53

benefits was to ‘ensure that the recipients of the benefits maintain a standard of living commensurate with that which they enjoyed prior to retirement’.168 As a result, the Court of Justice found that the old-​age benefits provided by the Liechtenstein occupational pension scheme and the old-​age benefits under the Austrian statutory pension scheme were ‘equivalent benefits’ within the meaning of Article 5(a) of Regulation 883/​2004. This implied for Mr Knauer that his contribution to the Health Insurance Scheme would be calculated on the basis of his total monthly pension including the old-​age benefits provided by the Liechtenstein occupational pension scheme. 1.3.5 The Aggregation of Periods of Residence, Work and Insurance Article 48 tfeu requires the European Union to take measures on the aggregation of periods of insurance. Rules on the aggregation of periods aim at ensuring that periods of residence, work and insurance completed abroad are taken into account when a Member State is considering whether to grant the migrant worker a social security benefit. They are important because some Member States require certain periods of residence, contributions or work to be complemented before being able to be granted certain social security benefits and migrant workers might not fulfill sufficiently the periods required if their time abroad does not count.169 Article 6 of Regulation 883/​2004 enshrines the principle of aggregation of periods. It states that the competent institution should take into account periods of insurance, employment, self-​employment or residence completed under the legislation of another Member State as if the periods were completed under its legislation. Article 1(t), Article 1(u) and Article 1(v) of Regulation 883/​2004 further define periods of insurance, periods of employment or self-​employment and periods of residence.170 The principle of aggregation of 1 68 Case C-​453/​14 Knauer, ECLI:EU:C:2016:37, para.35. 169 F. Pennings, ‘Principles of EU coordination of social security’, in F. Pennings and G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 335. 170 Article 1(t) defines periods of insurance as ‘periods of contribution, employment or self-​ employment as defined or recognised as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance’. Article 1(u) defines periods of employment or self-​employment as ‘periods so defined or recognised by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment or to periods of self-​employment.’ Article 1(v) defines periods of residence as ‘periods so defined or recognised by the legislation under which they were completed or considered as completed.’.

54 

Chapter 2

periods found in Article 6 of Regulation 883/​2004 has the consequence that periods of insurance need to be communicated between the Member States. The information communicated is binding upon the Member State receiving it171 and its quality should not be questioned.172 The principle of aggregation of periods of insurance enshrined in Article 6 applies to all benefits covered by the material scope of Regulation 883/​2004 except when it is expressly provided otherwise in the Regulation.173 For example, Article 66 of the Regulation provides that the principle of aggregation does not apply to pre-​retirement benefits. Furthermore, Article 6 of Regulation 883/​2004 requires that a Member State considers all periods of insurance as if they were completed under the legislation of the competent institution. Hence, Article 6 does not only apply when a worker has spent several insurance periods in different Member States but also when a worker completed the entirety of his insurance period in one Member State and asks for a benefit in another Member State. In the Bergström case, Mrs Bergström, a Swedish national, settled and worked for many years in Switzerland until the birth of her daughter. She returned to Sweden where she remained unemployed to take care of her daughter. She asked for a parental benefit but the competent Swedish authorities refused to grant her such a benefit on the ground that she did not fulfill the condition of being employed in Sweden for 240 days prior to the birth. The Swedish authorities were refusing to apply the aggregation principle to the case of Mrs Bergström on the basis that the entirety of her insurance period was completed in Switzerland and not at all in Sweden. The Court held that the aggregation includes ‘all periods’ to be taken into account, including those periods of insurance completed in their entirety within the territory of another State.174 Furthermore, the principle of aggregation of periods of insurance also applies when the beneficiary asks for periods of insurance completed in one Member State to be recognised by another Member State, even though the beneficiary is residing in a non-​EU Member State at the time of the demand.175 For example, as it was the situation in the Chuck case, Netherlands has to recognise periods of contributions 1 71 Case C-​372/​02 Adanez-​Vega, ECLI:EU:C:2004:705. 172 Administrative Commission, ‘Decision No H6 of 16 December 2010 concerning the application of certain principles regarding the aggregation of periods under Article 6 of Regulation (EC) No 883/​2004 on the coordination of social security systems’, [2011] OJ C 45/​4. 173 The application of the aggregation principle is further explained in Article 12 of Regulation 987/​2009, the implementing Regulation. 174 Case C-​257/​10 Bergström, ECLI:EU:C:2011:839, paras.42–​44. 175 Case C-​331/​06 Chuck, ECLI:EU:C:2008:188.

The EU legal framework on social security coordination

55

paid by a beneficiary in Denmark in order to calculate the pension rights in the Netherlands, even though this beneficiary was resident in the usa when asking for pension rights. 1.3.6 The Export of Benefits Article 7 provides that cash benefits shall not be subject to any reduction, amendment, suspension, withdrawal or confiscation on the grounds that the beneficiary or his family members reside in a Member State other than the one responsible for granting the benefits. For example, the cash benefits of a Belgian worker who acquired the right to those benefits in the Netherlands must not be reduced on the grounds that the Belgian worker is now living in France. It is important to say that Article 7 does not give the right to an entitlement to benefits under the legislation of one Member State, rather it assumes entitlement and then removes the territorial restrictions to that entitlement.176 The general rule on waiving of residence enshrined in Article 7 contains some exceptions listed in Title iii of the Regulation. Firstly, Article 7 applies to unemployment benefits only for the cases provided for by Article 64 and 65.177 For example, several conditions need to be fulfilled by a wholly unemployed person who satisfies the conditions of the legislation of the competent Member States for entitlement to benefits, and who goes to another Member State in order to seek work there, in order to receive unemployment benefits for the first three months with a possibility to extend to a maximum of six months.178 Secondly, Article 7 does not apply to special non-​contributory cash benefits.179 Indeed, Article 70(4) provides that the special non-​contributory cash benefits are to be exclusively granted by and at the expense of the Member State of residence,180 in accordance with its legislation. Consequently, the Member

176 R. Schuler, ‘Article 7: Waiving of residence rules’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015) 130. 177 Article 63 of Regulation 883/​2004. 178 Article 64 (1) of Regulation 883/​2004. 179 Article 70(3) of Regulation 883/​2004. The non-​exportability of special non-​contributory cash benefits must however respect the rules on the free movement of persons. See Case C-​287/​05 Hendrix, ECLI:EU:C:2007:494. 180 In cases of multiple residences in different Member States, ‘residence’ here is interpreted by the CJEU as ‘habitual residence’. The ‘habitual residence’ is determined following a set of criteria such as the person’s family situation, the reasons for moving, the length and continuity of the residence and other criteria. Case C-​90/​97 Swaddling, ECLI:EU:C:1999:96; Case C-​76/​76 Di Paolo, ECLI:EU:C:1977:32.

56 

Chapter 2

State of residence decides whether the person is entitled to the special non-​ contributory cash benefits or not. Finally, with regard to the rule on export of benefits contained in Article 7 of the Regulation, it must be said that it applies only for the export of benefits within the Member States. Hence, Article 7 does not oppose rules of a Member State not allowing the export of benefits for those beneficiaries staying or residing outside the EU.181 1.3.7

The Relationship between the Rules of Bilateral Agreements and the Rules of Regulation 883/​2004 Next to the rules under Regulation 883/​2004 and Regulation 1231/​2010 that regulates the situation of mobility within the EU (internal mobility), there are other instruments related to social security coordination for third-​country migrant workers. Conflicts and problems occur when other instruments contradict the EU rules on social security coordination. The first set of potentially conflicting instruments concern the bilateral agreements concluded by Member States prior to the application of the EU Regulation on social security coordination. The fact that the EU Regulation on social security coordination did not apply yet to the Member States can be explained by two different reasons. First, the Member States already had a bilateral agreement before the entry into force of Regulation 3, the first EU Regulation on social security coordination. Second, a bilateral agreement was concluded between an EU Member State and a non-​EU Member State who then joined the EU and had to apply the EU rules on social security coordination. The second set of potentially conflicting instruments are the Member States bilateral agreements concluded with third-​countries. 1.3.7.1

The Relationship between Regulation 883/​2004 and Bilateral Agreements between Member States Prior to creation of the EU, Member States had concluded social security agreements between themselves.182 When Regulation 3 was adopted by the eec, it

181

Case C-​331/​06 Chuck, ECLI:EU:C:2008:188, para.38. That being said, if a Member State has concluded a bilateral agreement with a non-​Member State rendering the export of benefits possible for its nationals, it should also include the possibility of export of benefits for other EU citizens. See Case C-​55/​00 Gottardo, ECLI:EU:C:2002:413. For a detailed explanation on that situation, see further in Chapter 2, pp.56–​58. 182 For example, the Netherlands and the United Kingdom had a convention on social security coordination which was incorporated into British law by the National Insurance and Industrial Injuries Order 1955 prior to the accession of the United Kingdom to the

The EU legal framework on social security coordination

57

was decided to give priority to the rules created thereby in cases of conflicts.183 Now the conflict rule is enshrined in Article 8 of Regulation 883/​2004184 which provides that the Regulation is to replace any social security convention applicable between Member States falling under its scope.185 However, Article 8(1) of Regulation 883/​2004 provides that social security agreements concluded by Member States can be applied when they are more favourable to the beneficiaries than the rules of the Regulation 883/​2004 or when they arise from specific historical circumstances and the bilateral agreements are limited in time. In addition, the social security agreements covered by Article 8(1) should be listed in Annex ii of Regulation 883/​2004. In Walder, the Court was confronted with a bilateral agreement that was more favourable than Regulations 3 and 1408/​71186 however the bilateral agreement was not listed in the Regulations.187 Mr Walder, a Dutch national, permanently residing in Belgium, had an old-​age pension calculated for his working years in the Netherlands on the basis of Regulation 3. However, Mr Walder wanted his old-​age pension to be calculated on the basis of the Dutch-​Belgian Convention under which he would have received a higher old-​ age pension due to the fact that not only his working years in the Netherlands would be taken into account but also the years of residency of himself and his wife.188 Following Advocate General Roemer’s Opinion,189 the Court of Justice held that the provision in Regulation 3 providing for the precedence of Regulation 3 over conventions concluded by Member States is mandatory in nature. The Court of Justice further held that the only exception is the one authorised by the Regulation itself; i.e. the exception related to those conventions which are expressly mentioned in the Regulation or its Annex.190 The fact that the Dutch-​Belgian Convention would be more advantageous for the

1 83 184 185 186 1 87 188 189 190

European Union. For an example of how this particular situation is interpreted by the Court of Justice, See Case C-​99/​80 Galinsky, ECLI:EU:C:1981:81. Article 5 of Regulation 3. It was enshrined in Article 6 in Regulation 1408/​71. It should be added that based on Article 8(2) it is still possible for Member States to conclude social security agreements with each other while not contradicting the principles and the spirit of Regulation 883/​2004. The references to Regulation 1408/​71 can be explained due to the fact that at the time of the proceedings, Regulation 1408/​71 had replaced Regulation 3. Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:62. Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:62, 600–​601. Opinion of Advocate General Roemer in Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:54. Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:62, para. 6.

58 

Chapter 2

applicant was not considered to be a sufficient reason to escape the principle of primacy of the Regulation.191 In Rönfeldt, the Court ruled on the application of the Danish-​German bilateral agreement over Regulation 1408/​71 despite the fact that this bilateral agreement was not listed in the Regulation or its Annex. The Court held that the Treaty provision on the free movement of workers precluded the loss of social security advantages for workers which would result from the inapplicability,192 following the entry into force of Regulation 1408/​71, of conventions operating between two or more Member States.193 In casu, the bilateral convention was applied over the Regulation despite the fact that it was not listed in the Regulation or its Annex. Hence, following the Rönfeldt ruling, a bilateral agreement that is not listed in the Regulation must nonetheless apply if its inapplicability would result in the loss of social security advantages for workers. However, as explained in the Thévenon case, the Rönfeldt ruling applies solely to situations where there is a loss of an advantage previously acquired under the bilateral agreement.194 Mr Thévenon, a French national, worked in France for 13 years before moving in 1977 to work in Germany. Mr Thévenon was granted a provisional invalidity pension in Germany as the periods of insurance in France were not yet known. The French-​German bilateral agreement would lead to a more favourable calculation of Mr. Thévenon’s invalidity benefits than the calculation based on Regulation 1408/​71. However, the French-​German bilateral agreement was not listed in the annex of the Regulation. The Court examined whether the Rönfeldt case could apply to the situation of Mr Thévenon. For that purpose, the Court held that the decisive factor in Rönfeldt was the loss of a social security advantage that would result from the inapplicability of the bilateral agreement.195 However, because Mr Thévenon only exercised his 1 91 Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:62, para. 7. 192 The Rönfeldt case concerned a German national residing in Germany who worked in Denmark and Germany for a number of years. On the basis of the Danish-​German bilateral agreement, the periods of contributions completed in Denmark were to be taken into account both for purposes of the qualifying period and the calculation of the German retirement pension. However, that bilateral agreement had been replaced by the provisions of Regulation 1408/​71. The Court of Justice then examined whether that loss of social security advantages –​had the Danish-​German convention been applied-​was compatible with Article 48(2) and 51 of the Treaty. 193 Case C-​227/​89 Rönfeldt v Bundesversicherungsanstalt für Angestellte, ECLI:EU:C:1991:52, para.29. 194 Case C-​475/​93 Thévenon and Stadt Speyer-​ Sozialamt v Landesversicherungsanstalt Rheinland-​Pfalz, ECLI:EU:C:1995:371, paras.26–​28. 195 Case C-​475/​93 Thévenon and Stadt Speyer-​ Sozialamt v Landesversicherungsanstalt Rheinland-​Pfalz, ECLI:EU:C:1995:371, para.24.

The EU legal framework on social security coordination

59

free movement right after the entry into force of Regulation 1408/​71, thereby after the replacement of the French-​German bilateral agreement, he could not claim any acquired social security advantages under the bilateral agreement and any loss thereof.196 Hence, only the provisions of Regulation 1408/​71 were relevant in the calculation of the invalidity pension of Mr Thévenon. Following Thévenon, the Rönfeldt ruling does not apply in circumstances when the insured person had not exercised his right to free movement until after the entry into force of the Regulation, hence after the bilateral agreement had been replaced by the Regulation. In Gómez Rodriguez, the application of the Rönfeldt ruling to a bilateral agreement that was more favourable sometimes but also less favourable at other times than the EU Regulation, was under scrutiny.197 Mr and Ms Rodriguez, Spanish nationals, were granted orphan’s pensions198 by the German authorities on the basis of the 1973 German-​Spanish bilateral agreement.199 However, from 1986, when Spain acceded the European Communities, the Spanish insurance institution became the competent institution according to Article 78(2) of Regulation 1408/​71 and granted the orphan’s pensions to the beneficiaries until they reached their 18th anniversary pursuant to Spanish law.200 After their 18th anniversary, relying on the German-​Spanish bilateral agreement, Mr and Ms Rodriguez applied to the German authorities for orphan’s pensions as in Germany such a pension could be granted until the age of 25.201 The German authorities pointed out that they had compared the advantages under the bilateral convention and under the Regulation, and that the advantages under the system of the Regulation were more favourable than the ones under the system of the bilateral convention.202 That is why the Regulation was applied to the situation of Mr and Ms Rodriguez and Spain became the competent State. In that context where the Member State conducted a comparative

196

Case C-​475/​93 Thévenon and Stadt Speyer-​ Sozialamt v Landesversicherungsanstalt Rheinland-​Pfalz, ECLI:EU:C:1995:371, para.26. 197 Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203. 198 For the number of years of insurance completed by their father in Germany. 1 99 Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, paras. 2–​4. 200 Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, para.6. 201 Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, para.7. 202 Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, para. 43.

60 

Chapter 2

test of the different advantages and opted for the Regulation on that basis, the Court found that the Rönfeldt ruling could not be applied.203 Otherwise, it would mean that every migrant worker ‘could at any time ask for either the arrangements under the Regulation or those under the convention to be applied, depending on the most advantageous outcome for him at the time’.204 Such a situation would result in considerable administrative difficulties for the Member States which would have to review the comparison of advantages whenever there is a change in the personal circumstances of the person concerned.205 As a result, the Rönfeldt ruling does not apply to situations where a comparison test was conducted when the benefits were set under the Regulation for the first time, and the result of that comparison test was that the rules under the Regulation were the most advantageous. This means that, in order for Rönfeldt to apply, the loss of social security advantages resulting from the non-​application of a bilateral agreement concern the loss at the time the Regulation can be applied for the first time. Lastly, in the Balazs case rendered in 2015, the Court of Justice was asked whether Article 7(2)(c) of Regulation No 1408/​71 was to be interpreted as permitting a bilateral agreement which was concluded prior to the accession of one of the signatory States to the EU and which was not listed in Annex iii to Regulation 1408/​71, to be applied to the situation of political refugees who were repatriated to their State of origin before the bilateral agreement was concluded and before Regulation 1408/​71 entered into force.206 Mr and Mrs Balazs were Greek nationals who came to Romania when they were children in 1948 and were accorded the status of political refugees. They contributed to the public social security system of Romania until 1990 when they were repatriated to Greece.207 They applied for their periods of insurance completed in Romania to be recognised by the Greek authorities for the purpose of calculating their old-​age pensions in Greece. The Greek authorities recognised only half of the days of insurance they had completed in Romania.208 Mr and Mrs Balazs then applied to the Romanian authorities, by virtue of Regulations 1408/​71 and 574/​72, for the grant of old-​age pensions. The Romanian authorities refused it 203 204 205 2 06 207 208

Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, para. 45. Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, para. 46. Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203, para. 47. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, para.28. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, paras.12–​13. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, paras.14–​17.

The EU legal framework on social security coordination

61

on the ground that, since they are repatriated political refugees, pursuant to Article 5 of the bilateral agreement between Greece and Romania, Romania was under no obligation to grant them pensions.209 Mr and Mrs Balazs did not want the bilateral agreement to apply to them as it was not more favourable to them and was not listed in Annex iii of Regulation 1408/​71.210 The Court found that, since the fact that the bilateral agreement was not listed in Annex iii to Regulation 1408/​71 as demanded by Article 7(2)(c), the provisions of the Regulation have replaced the ones of the bilateral agreement.211 Concerning the application of the Rönfeldt ruling, the Court noted that Mr and Mrs Balazs left Romania for Greece six years before the bilateral agreement was concluded. They could not have derived any legitimate expectations nor any rights from this bilateral agreement.212 Additionally, Mr and Mrs Balazs did not wish the application of the bilateral agreement,213 contrarily to the situation in Rönfeldt. As a result of those considerations, the Court of Justice concluded that the bilateral agreement did not apply to the situation of Mr and Mrs Balazs and that the provisions Regulation 1408/​71 apply to them.214 The Rönfeldt ruling complemented by Thévenon implies that bilateral agreements not listed in the Regulation must nonetheless apply if their inapplicability would result in the loss of social security advantages previously acquired under the bilateral agreements. The social security advantages previously acquired under the bilateral agreements can be pension benefits (Rönfeldt) or ­invalidity benefits (Thévenon) but also any other social security advantages covered by Regulation 1408/​71. In Kaske,215 a case concerned with unemployment 2 09 210 211 212 213 214 215

Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, para.19. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, para.25. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, para.36. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, para.42. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, para.43. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26, paras.44–​45. Ms Kaske, a German and Austrian national, worked in both countries for several years where she contributed to the social security systems. She became unemployed in Germany and received unemployment benefits there. During a short period of employment, Ms Kaske decided to return back to Austria where she was unemployed and asked for unemployment benefits. Using Article 67(3) of Regulation 1408/​71, the Austrian authorities rejected her application for unemployment benefits on the grounds that she did not complete her period of insurance or employment in Austria immediately prior to her application for unemployment benefits. Hence, her periods of contributions effectuated in Germany could not be taken into account. However, if the Austrian authorities had used the German-​Austrian convention, the period of insurance completed in Germany could have been considered. One of the element raised by the Austrian authorities to disregard Rönfeldt was that this case was rendered in the context of pension rights and does not apply to unemployment benefits. Case C-​277/​99 Kaske, ECLI:EU:C:2002:74.

62 

Chapter 2

benefits,216 the Court held that its reply given in the Rönfeldt case relates to all social security advantages covered by Regulation No 1408/​71, whether they are acquired once and for all or whether they cover the insured for a temporary period. The Court then concluded that the Rönfeldt ruling also applies to unemployment benefits.217 In Martinez Dominguez, the Court further extended the Rönfeldt ruling to family benefits.218 Gomez Rodriguez and Balazs are indicative on when the Rönfeldt ruling does not apply. According to Gomez Rodriguez, Rönfeldt does not apply if a comparison test has been conducted at the moment when the Regulation could be applied for the first time to the person concerned and the result of that comparison was that the Regulation was more favourable than the bilateral agreement. Balazs implies that the Rönfeldt ruling is only relevant if the person could derive any legitimate expectations or right from a bilateral agreement that is more favourable to the person concerned then. If the bilateral agreement did not apply to the situation of the person before the entry into force of the Regulation, the Rönfeldt ruling does not apply. 1.3.7.2

The Relationship between Regulation 883/​2004 and Bilateral Agreements between Member States and Third-​Countries There is no rule within Regulation 883/​2004 that provides for a solution in case of conflicts between the Regulation and a Member State’s agreement with a third-​country. A conflict between Regulation 1408/​71 and Member State’s agreement with a third-​country was at stake in the Grana Novoa case.219 In Grana Novoa, Mrs Grana Novoa wanted to rely on bilateral conventions between Germany and the Swiss Confederation on the one hand, and between Germany and Spain on the other hand, to have her periods of insurance completed in Switzerland and Spain recognised by the German authorities in order to be granted pension rights. It should be noted that, at the time when she wanted to rely on the bilateral conventions (in 1983), Spain had not acceded to the EU yet220 neither were 216 An attempt to extend the reasoning of Rönfeldt to unemployment benefits was already considered in the Thelen case. See Case C-​75/​99 Thelen, ECLI:EU:C:2000:608. 217 Case C-​277/​99 Kaske, ECLI:EU:C:2002:74, para.25. 218 Case C-​471/​99 Martínez Domínguez and Others, ECLI:EU:C:2002:523. 219 Case C-​23/​92 Grana-​Novoa v Landesversicherungsanstalt Hessen, ECLI:EU:C:1993:339. 220 Treaty (signed on 12 June 1985 between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Communities) and the Kingdom of Spain and the Portuguese Republic concerning the accession of the Kingdom of Spain and the Portuguese Republic to the

The EU legal framework on social security coordination

63

the EU rules of Regulation 1408/​71 extended to Switzerland.221 Mrs Grana Novoa invoked the principle of equal treatment of Article 3(1) of Regulation 1408/​ 71 as a basis for application of the bilateral conventions. Indeed, she thought that as German nationals could rely on those bilateral conventions, she should be able to do so on the basis of Article 3(1) of Regulation 1408/​71. The Court however held that ‘no provision of the Regulation covers conventions concluded between a single Member State and one or more non-​member States, either as regards the question of whether and to what extent the scheme of the Regulation is to replace them or as regards the application of the principle of equal treatment’.222 Hence, from that case law, it is clear that Regulation 1408/​71 and consequently Regulation 833/​2004 do not contain a rule on the relationship between those instruments and bilateral conventions signed by a Member State with a third country.223 The fact that the Regulation is silent on this issue does not imply that Member States can disregard EU primary law when concluding bilateral ­conventions with third-​countries. In Gottardo, the Court of Justice held that the non-​application of Regulation 1408/​71 cannot affect the Member States’ obligations to comply with the principle of equal treatment enshrined in Article 39 EC (now Article 45 tfeu) on the principle of non-​discrimination for workers.224 In Gottardo, the applicant was an Italian national by birth who had to revoke her nationality when she acquired French nationality by marriage. Mrs Gottardo had worked for some time in France, Italy and Switzerland. She received an old-​age pension from France and Switzerland for the years she worked respectively in the two countries. When she applied in Italy to receive old-​age pension for the years she worked there, she was unable to do so without taking into account the period of insurance in Switzerland. Therefore, she wanted to rely on the Italo-​Swiss social security convention that provides for the principle of aggregation of insurance periods between the two countries. European Economic Community and to the European Atomic Energy Community, [1985] OJ L302/​9. 221 Annex II of the Agreement between the EC and its Member States on the one hand, and the Swiss Confederation on the other, on the free movement of persons, [2002] OJ L 114/​6. 2 22 Case C-​23/​92 Grana-​Novoa v Landesversicherungsanstalt Hessen, ECLI:EU:C:1993:339, para. 24. 223 In its 2012-​Communication, the European Commission stated that ‘In cases of conflict, EU Regulations take precedence over national rules contained in bilateral agreements with third countries’. See European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) com (2012) 153 final, 4. 224 Case C-​55/​00 Gottardo, ECLI:EU:C:2002:16, para.35.

64 

Chapter 2

The Italian authorities refused to apply the Italo-​Swiss convention on the ground that Mrs Gottardo was not a national of one of the Contracting Parties to the Convention. The referring national court asked the Court of Justice whether such a refusal was in compliance with the principle of equal treatment enshrined in Article 12 EC (now Article 18 tfeu) or in Article 39(2) EC (now Article 45 tfeu). The Court of Justice recalled its judgments on bilateral conventions in other areas such as direct taxation225 where it held that while those areas were within the Member States’ competences, the Member States must exercise such competences consistently with EU law.226 Consequently, the Court considered that the Member States must respect the principle of equal treatment when they conclude a bilateral convention with a third country. According to this principle of equal treatment, Member States should grant nationals of other Member States the same advantages as those which its own nationals enjoy under that bilateral convention.227 The case of Gottardo is important for the study of social security coordination, especially when it involves the application of bilateral agreements between Member States and third countries. In the Gottardo judgment, the Court of Justice held that the bilateral agreements concluded by Member States with third countries should be applied in the light of the fundamental principle of equal treatment of EU citizens. This means essentially that any Member State must treat all EU citizens equally to its nationals while applying a bilateral agreement on social security which it concluded with a third country. The consequences of this judgment from the Court of Justice exceeded the realm of the case of Mrs Gottardo. The Administrative Commission on Social Security Coordination has issued a Recommendation on the Gottardo judgment.228 One of the recommendations concern new bilateral conventions on social security to be concluded with third countries. The Administrative Commission recommends that the new conventions make explicit reference to the principle of non-​discrimination on the grounds of nationality against nationals of other Member States who have exercised their right of free movement in the Member State which is a party to the convention concerned.229 For Member

2 25 226 227 228

Case C-​307/​97 Saint-​Gobain ZN, ECLI:EU:C:1999:438. Case C-​55/​00 Gottardo, ECLI:EU:C:2002:16, para. 32. Case C-​55/​00 Gottardo, ECLI:EU:C:2002:16, para. 34. Administrative Commission, ‘Recommendation No 22 of 18 June 2003 concerning the Gottardo judgment, according to which the advantages enjoyed by a State’s own nationals under a bilateral convention on social security with a non-​member country must also be granted to workers who are nationals of other Member States’, [2003] OJ L 326/​35. 229 Point 2 of Recommendation No 22.

The EU legal framework on social security coordination

65

States who have bilateral conventions with third countries whose provisions apply only to nationals of the parties to the conventions, they should inform the institutions of the third countries of the consequences of the Gottardo judgment for the Member States.230 Nowadays, many Member States include a so-​called ‘Gottardo clause’ when concluding bilateral agreement with third countries.231 Those ‘Gottardo clauses’ in bilateral agreements between Member States and third countries provide for equal treatment for citizens from other Member States. Hence, based on a ‘Gottardo clause’, the application of a bilateral agreements is not restricted to the nationals of the Contracting Parties but also extends to any EU citizen in the Member State that concluded the bilateral agreement. Additionally, whereas the Gottardo case concerned the equal treatment of EU citizens with regard to the principle of aggregation of periods, the ‘Gottardo clauses’ included in bilateral agreements concluded by Member States and third countries provide for equal treatment of EU citizens in the Member States with regard to the application of the entire agreement. As a result, the ‘Gottardo clauses’ are not limited to the aggregation of periods but also apply, for example, in the context of export of benefits. 2

The External Dimension of EU Social Security Coordination

Whereas the previous Section dealt with the coordination of social security for third-​country nationals who move within the European Union (situation of internal mobility), this Section discusses the EU social security coordination rules for third-​country nationals coming from outside the European Union to a Member State (situation of external mobility). The EU has taken two approaches with regard to the social security rights of third-​country nationals in a situation of external mobility. On the one hand, the EU has concluded agreements dealing with mobility issues with third countries directly. Those agreements often include one or several provisions on social security coordination. The EU agreements with third countries that include a reference to social security coordination are: the eea Agreement, the EU-​Swiss Agreement, the EU-​Turkey Agreement, 2 30 Point 3 of Recommendation No 22. 231 B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 31; ilo, Social Security Coordination for non-​EU States in South and Eastern Europe: a legal analysis (2012) 7; missoc, MISSOC Analysis 2013/​2: External Aspects of Social Security Coordination (2013) 18.

66 

Chapter 2

the Agreement on Cooperation and Customs Union with San Marino, the Euro-​Mediterranean Association Agreements,232 the Stabilisation Association Agreements with Balkan countries,233 the Partnership and Cooperation Agreements.234 This Section discusses all those agreements in order to present a comprehensive overview of the EU legal framework on social security coordination rules applicable to third-​country nationals. On the other hand, the EU has adopted unilateral measures on legal migration: i.e. the Long-​Term Residence Directive,235 the Blue Card Directive,236 the Single Permit Directive,237 the Intra-​Corporate Directive,238 the Seasonal Workers Directive,239 and the Students and Researchers Directive,240 the Family Reunification Directive.241, 242 All of them, except the Family Reunification 2 32 With Algeria; Egypt; Jordan; Israel; Lebanon; Morocco; and Tunisia. 233 With the Former Yugoslav Republic of Macedonia; Albania; Montenegro; Serbia; Bosnia and Herzegovina; and Kosovo. 234 With Moldova; Ukraine; and Russia. 235 Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents, [2004] OJ L 16/​44-​53. 236 Council Directive 2009/​50/​EC of 25 May 2009 on the conditions of entry and residence of third-​country nationals for the purpose of highly qualified employment, [2009] OJ L 155/​17. 237 Directive 2011/​98/​EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and a common set of rights for third-​ country workers legally residing in a Member State, [2011] OJ L 343/​1. 238 Directive 2014/​66/​EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-​country nationals in the framework of an intra-​corporate transfer, [2014] OJ L157/​1. 239 Directive 2014/​36/​EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and residence of third-​country nationals for the purpose of employment as seasonal workers, [2014] OJ L94/​375. 240 Council Directive 2004/​114/​EC of 13 December 2004 on the conditions of admission of third country nationals for the purpose of studies, pupil exchange, unremunerated training, or voluntary service, [2004] OJ L 375/​12; Council Directive 2005/​71/​EC of 12 October 2005 on a specific procedure admitting third-​country nationals for purposes of scientific research, [2005] OJ L289/​15. 241 Council Directive 2003/​86/​EC of 22 September 2003 on the right to family reunification, [2003] OJ L 251/​12. 242 There are also the Qualification Directive (Directive 2011/​95) and the Citizenship Directive (2004/​38). The Qualification Directive provides that Member States should ensure that beneficiaries of international protection receive the necessary social assistance as provided to their own nationals (Article 29). Given the fact that the Qualification Directive only concerns equal treatment with regard to access social assistance for beneficiaries of international protection, it will not be discussed further in this research. Furthermore, the Citizenship Directive can be relevant for third-​country nationals who are family members of EU citizens move and residing in a Member State other than their

The EU legal framework on social security coordination

67

Directive, contain reference to the social security rights of third-​country nationals by means of an equal treatment provision.243 The second part of this Section is then dedicated to the analysis of the different equal treatment provisions of the Long-​Term Residence Directive, the Blue Card Directive, the Single Permit Directive, the Intra-​Corporate Directive, the Seasonal Workers Directive, and the Students and Researchers Directive. The purpose of the analysis is to compare them and to rank them from the Directive providing the most extensive protection to the social security rights of third-​country nationals to the one providing the least. The overall purpose of this Section is to critically reflect on whether the EU is currently conducting a common approach or an ad hoc approach to social security coordination with third countries. Finally, it must be noted that while the application of the EU Directives depends on the legal status of third-​country nationals who arrive in a Member State, the application of an EU agreement with a third-​country depends on the country of origin of the third-​country nationals. For example, if a third-​ country national comes to a Member State under the status of Blue Card Holder, the equal treatment provision of the Blue Card Directive, relevant for his/​her social security rights, will apply to him/​her. However, a third-​country national coming from Algeria would benefit from the rules under the Euro-​ Mediterranean Agreement with Algeria irrespective of his/​her legal migration status under the EU Directives. Potentially, depending on their legal status under the EU Directives and their country of origin, the two set of instruments can apply to the same third-​country nationals.244 This issue is usually solved own.Article 24 of the Citizenship Directive provides for equal treatment. However, those third-​country nationals have derived rights as family members of EU citizens and this is not the subject of this research. Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, [2011] OJ L 337/​9; Directive 2004/​38/​EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/​68 and repealing Directives 64/​221/​EEC, 68/​360/​ EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC and 93/​96/​EEC, [2004] OJ L 158/​77. 243 Article 11 of the Long-​Term Residence Directive; Article 14 of the Blue Card Directive; Article 23 of the Seasonal Workers Directive; Article 12 of the Single Permit Directive; Article 18 of the Intra-​Corporate Transfer Directive; Article 22 of the Students and Researchers Directive. 2 44 For example, see the Payir case where Ms Payir, an au pair from Turkey was falling under the scope of the Student Directive and the EU-​Turkey Association Agreement (Case C-​294/​06 Payir and Others ECLI:EU:C:2008:36, para.48). For a discussion about the

68 

Chapter 2

by applying the most advantageous instrument to the situation of the third-​ country national.245 2.1 EU Agreements with Third Countries As already explained, this Section provides an exhaustive overview of all the EU agreements concluded with third countries that include a reference to social security coordination. Before describing and analysing the specific agreements, it must be understood that the EU agreements presented in this Section concern different types of relationship with third countries. While some agreements provide for a close relationship that includes the integration of the EU internal market rules, other agreements have the purpose of furthering political dialogue on a wide variety of issues. For example, the eea Agreement and the EU-​Swiss Agreement are ‘integration-​oriented agreements’ according to M.  Maresceau.246 Those ‘integration-​oriented agreements’ are EU agreements with third countries containing provisions of EU law that have to be applied in the third countries as if the third countries were members of the EU. On the other side of the spectrum, the Partnership and Cooperation Agreement with Russia serves the purpose of furthering political dialogue between the EU and Russia on issues such as human rights protection, trade, international peace and security. Given the variety of the relationships between the third countries and the EU, the aim and content of each EU agreement is briefly addressed for each EU agreement discussed. Understanding the aim and content of the EU agreements is important for the discussion on the social security coordination provisions contained in those EU agreements. Indeed, the lack of close relationship with a third country might explain why an EU agreement does not contain an extensive social security coordination provision. After the discussion of each separate agreement, this Section ends with some conclusions to be taken into areas of potential overlap between the EU migration Directives and the Association Agreements, See S. Peers, ‘EU Migration Law and the EU/​Turkey Association Agreements’, in D.  Thym & M.  Zoeteweij-​Turhan (Eds.) Rights of Third-​Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015) 202–​222. 245 Article 3(4)(a) of the Family Reunification Directive, Article 4(1)(a) of the Students and Researchers Directive. This situation has also been confirmed by the Court of Justice in the Payir case where Ms Payir, an au pair from Turkey was falling under the scope of the Student Directive and the EU-​Turkey Association Agreement (Case C-​294/​06 Payir and Others ECLI:EU:C:2008:36, para.48). 2 46 M. Maresceau, ‘Les accords d’intégration dans les relations de proximité de l’Union européenne’, in C.  Blumann (Ed.), Les frontières de l’Union européenne (Bruylant 2013) 151–​192.

The EU legal framework on social security coordination

69

consideration for the future of a common EU approach on social security coordination with third countries. 2.1.1 The eea Agreement 2.1.1.1 Purpose of the eea Agreement and Its Institutional Structure The Agreement creating the European Economic Area (eea)247 between the EU and the efta States (Iceland, Liechtenstein and Norway) entered into force on 1 January 1994.248 The purpose of the eea Agreement is to achieve the fullest possible extension of the EU internal market rules to the efta States.249 In that context, the eea Agreement includes provisions on the free movement of workers and persons.250 It reproduces, in essence, the content of Article 45 tfeu and Article 48 tfeu on the free movement of workers.251 The eea Joint Committee252 incorporates EU acquis when relevant for the good functioning of the eea Agreement.253 In that regard, when the EU updates its acquis which are covered by the eea agreement, the EU should inform the other Contracting Parties in the eea Joint Committee.254 In order to permit a homogenous application, the eea Joint Committee must then take a decision on amending an Annex to the eea Agreement as closely as possible to the adoption of the corresponding new EU legislation.255 Every eea item of legislation needs then to be transposed into the national law of the eea efta States.256

247 Agreement on the European Economic Area  –​Final Act  –​Joint Declarations  –​ Declarations by the Governments of the Member States of the Community and the efta States –​Arrangements –​Agreed Minutes –​Declarations by one or several of the Contracting Parties of the Agreement on the European Economic Area, [1994] OJ L1/​3. 248 Except for Liechtenstein for which it entered into force on 1 May 1995, See Decision 1/​95 of the eea Council No 1/​95 of 10 March 1995 on the entry into force of the Agreement on the European Economic Area for the Principality of Liechtenstein, [1995] OJ L 86/​58. 249 Case C-​452/​01 Ospelt and Schlössle Weissenberg, ECLI:EU:C:2003:346, para. 29; Case C-​ 431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, para.48. 250 Part iii of the eea Agreement is on the free movement of persons, services and capital. 251 Articles 28 and 28 of the eea Agreement. 252 The eea Joint Committee is composed of representatives of the Contracting Parties to the eea, Article 93(1) of the eea Agreement. 253 Indeed, according to Article 98 of the eea Agreement, the amendments to the Annexes of the Agreements and its Protocols to include references to EU acquis is at the discretion of the eea Joint Committee. 254 Article 102 (1) of the eea Agreement. 255 Article 102 (1) of the eea Agreement. 256 Protocol 35 of the eea Agreement.

70 

Chapter 2

The eea Agreement relies on the efta institutional structure for the scrutiny of its correct implementation in the eea efta States. Hence, it is the efta Surveillance Authority that checks the correct implementation of the eea legislation. Additionally, the efta Court was created in order to rule on: actions concerning the surveillance procedure regarding the efta States, appeals concerning decisions in the field of competition taken by the efta Surveillance Authority, and the settlement of disputes between two or more efta States.257 The efta Court is also competent to give advisory opinions on the interpretation of the eea Agreement.258 There is also a possibility for courts and ­tribunals from the efta States to address a question of interpretation of provisions of the eea Agreement to the Court of Justice when the eea Agreement provision is identical to a provision of the EU Treaties.259 This possibility has however never been used until now. The reason for this lack of referral to the Court of Justice from national courts of the efta States could be explained by constitutional challenges those national courts would face with regard to the duty to follow the judgment of the Court of Justice in a preliminary ruling case. There is a duty to ensure a uniform interpretation of the eea Agreement between the interpretations given by the efta Court and the Court of Justice. Article 6 of the eea Agreement provides that there should be homogenous interpretation with the judgments of the Court of Justice given prior to the signature of the eea Agreement.260 In that context, the efta Court interprets and applies the eea legislation taking into account the relevant analogous rulings of the Court of Justice.261 Additionally, a system of exchange of information between the efta Court and the Court of Justice has been put in place.262 Finally, it must be said that the Court of Justice held in Opinion 1/​91 that it is not because the provisions of the eea Agreement are worded identically with 257 Article 108(2) of the eea Agreement. See also, Articles 27–​41 of the Agreement between the efta States on the establishment of a Surveillance Authority and a Court of Justice. 258 Article 34 of the Agreement between the efta States on the establishment of a Surveillance Authority and a Court of Justice. 259 Article 107 of the eea Agreement and Protocol 34 of the eea Agreement. 260 Homogeneous interpretation is also mentioned in the Preamble of the eea Agreement and in Chapter 3 of the eea Agreement. 261 An example, amongst many, of that analogous interpretation by the efta Court can be found in the Case E-​5/​06 EFTA Surveillance Authority v the Principality of Liechtenstein [2007] EFTA Court Report 298, a case on special non-​contributory benefits where the efta Court held a very similar ruling as the Court of Justice in Case C-​286/​03 Hosse, ECLI:EU:C:2006:125. For a commentary on the case E-​5/​06, see K.  Fløistad, The eea Agreement in a Revised EU Framework for Welfare Services, Studies in European Economic Law and Regulation 13 (Springer, 2018), 158–​166. 262 Article 106 of the EEA Agreement.

The EU legal framework on social security coordination

71

corresponding Community provisions that they should necessarily be interpreted identically.263 The Court of Justice found that the aim of the eec Treaty went beyond the establishment of rules on trade and competition which is the aim of the eea Agreement.264 In addition, the Court of Justice held that the context was also different. While the eea Agreement was to be concluded as an international Treaty with no transfer of sovereign rights to its intergovernmental institutions,265 the eec constituted a new legal order266 for which the Member States have limited their sovereignty.267 This Opinion implies that there is not always a duty of homogeneous interpretation due to the differences in aim and context of the eea Agreement with the eec Treaty. 2.1.1.2

The Social Security Coordination Rules under the eea Agreement, Its Annexes and Protocols In the context of expanding the internal market rules to the efta States, the eea Agreement contain provisions on the free movement of workers and persons between the efta States and the Member States of the EU268 as well as provisions on social security coordination.269 Article 28(2) provides for equal treatment with regard to employment, remuneration and other work conditions. Article 29 of the eea Agreement further states that in order to provide for the free movement of workers, the Contracting Parties should secure the 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 by the Contracting States.270 Also, Contracting 2 63 Opinion 1/​91, ECLI:EU:C:1991:490, para.14. 264 Opinion 1/​91, ECLI:EU:C:1991:490, paras.15–​16. 265 It must be said however that the efta Court also considers that the eea Agreement is an international law treaty creating a distinct legal order without transfer of sovereign rights from its Members however. Case E-​9/​97 Erla María Sveinbjörnsdóttir v Iceland [1998] efta Court Report 95 and Case E-​2/​03 Ákæruvaldið (The Public Prosecutor) v Ásgeir Logi Ásgeirsson, Axel Pétur Ásgeirsson and Helgi Már Reynisson [2003] efta Court Report 185. See also C. Baudenbacher, ‘The EFTA Court and the Court of Justice of the European Union: Coming in Parts But Winning Together’, in A. Rosas, E. Levits, Y. Bot (Eds.), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case law (t.m.c Asser Press 2013) 187. 266 Case C-​26/​62 Van Gend & Loos v Administratie der Belastingen, ECLI:EU:C:1963:1. 267 Opinion 1/​91, ECLI:EU:C:1991:490, para.21. 268 Article 28 of the EEA Agreement. 269 For a discussion on the social security coordination between the eea efta States and the EU, See B. Zaglmayer, ‘The Social Security Relations Between the EU and the EFTA State’, in D. Pieters & P. Schoukens (eds.), The Social Security Co-​Ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 57–​85. 270 This provision of the eea Agreement is very close to the wording of Article 48(1) tfeu.

72 

Chapter 2

Parties should secure the payment of benefits to persons residing in the territories of the Contracting Parties.271 With the aim of fostering free movement of workers, Annex vi of the eea Agreement listed the relevant legislation on social security coordination applicable at the time:  Regulation 1408/​71 and Regulation 574/​72. When those Regulations were replaced by Regulation 883/​2004 and Regulation 987/​2009, the references needed to be changed in the Annex vi of the eea Agreement. In that context, the Council of Ministers first needed to adopt a decision on the position to be taken in the eea Joint Committee on the amendment of Annex vi.272 That Decision273 has been challenged by the United Kingdom on the basis that its substantive legal basis,274 Article 48 tfeu, was incorrectly chosen by the Council.275 The United Kingdom considered that the correct substantive legal basis was Article 79(2)(b) tfeu on the definition of the rights of third-​country nationals residing legally in a Member State, as the contested Decision concerned third-​country nationals, here the nationals of the efta States. The Court of Justice found that the aim of the contested decision was to update the references of the new EU social security coordination rules to the efta Sates.276 Additionally, the Court pointed out that Article 28 of the eea Agreement on free movement of workers and Article 29 on social security coordination are essentially the corresponding provisions to Articles 45 and 48 tfeu.277 The Court emphasised the need to ensure that free movement of persons within the eea are exercised ‘under the same social conditions as within the European Union’ and therefore the update of the references from Regulation 1408/​71 to Regulation 883/​2004 were necessary in the eea context.278 2 71 Article 29 (b) of the eea Agreement. 272 In accordance with Article 218(9) tfeu. 273 Council Decision of 6 June 2011 on the position to be taken by the European Union within the eea Joint Committee concerning an amendment to Annex vi (Social Security) and Protocol 37 to the eea Agreement, [2011] OJ L 182/​12. 274 The substantive legal basis was accompanied with a procedural legal basis, Article 218(9) tfeu. 275 Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589. For a detailed discussion on this case, See N.  Rennuy & P.  van Elsuwege, ‘Integration without membership and the dynamic development of EU law: United Kingdom v. Council (EEA)’ 51 Common Law Market Review (2014) 935–​954; P. Melin, ‘The Search of EU Competence(s) for the Externalization of Social Security Coordination: Where There’s a Will, There’s a Way. Case C-​81/​13 United Kingdom v. Council (Turkish Case)’ 22 Maastricht Journal of European and Comparative Law (2015) 440–​453. 276 Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, paras. 46–​47. 277 Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, para. 51. 278 Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, paras.59–​60.

The EU legal framework on social security coordination

73

Based on those elements, the Court of Justice concluded that it was possible for the contested decision to be adopted under Article 48 tfeu.279 Regulation 883/​2004 has been fully extended to the eea efta States.280 However, it should be noted that Regulation 1231/​2010 concerning the extension of the EU rules on social security coordination to third-​country nationals was not identified as a relevant EU legal act for the eea Agreement.281 Therefore, it has not been incorporated in the eea legal order.282 The lack of incorporation of Regulation 1231/​2010 in the eea legal order could be explained by the fact that the eea Agreement is not concerned with the situation of third-​ country nationals within the eea whereas Regulation 1231/​2010 is based on Article 79(2)(b) tfeu, hence governing the situation of third-​country nationals in the EU. Since Regulation 883/​2004 and its implementing Regulation have been fully extended to the efta States, the case law of the cjeu presented in the first part of this research in relation to Regulation 883/​2004 is relevant for the efta States. In addition, the case law of the efta Court is worth discussing. Given the duty of homogeneous interpretation between the efta Court and the cjeu, the case law of the efta Court follows largely the one of the cjeu. Despite the limited amount of case law from the efta Court on Regulations 1408/​71 and 883/​2004, only a selection of the most recent cases will be here discussed.283 Firstly, E-​13/​15 concerned a dispute in relation to a review of invalidity pension by the Liechtenstein Insurance Fund on the basis of a medical examination conducted by a doctor from the Spanish Social Security Institute. After having worked for a number of years in Liechtenstein, Mr. Bautista received invalidity pension from Liechtenstein in 2008. He then moved to Spain in 2010. In 2013, his entitlement to the invalidity pension was being reviewed whereby the Liechtenstein authorities asked the Spanish Social Security Institute to conduct a medical examination. The examining doctor found that 2 79 Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, para.61. 280 Decision of the eea Joint Committee No 76/​2011 of 1 July 2011 amending Annex vi (Social Security) and Protocol 37 of the eea Agreement, [2011] OJ L 262/​33. Regulation 883/​2004 has been interpreted by the efta Court in Case E-​03/​13 Staten v/​ Arbeidsdepartementet v Stig Arne Jonsson [2013] efta Court Report 136. 281 Regulation 1231/​2010 does not have the indication ‘Text with relevance for the EEA’ whereas Regulation 883/​2004 has such an indication for example. 282 This legislative EU instrument is not listed in Annex vi of the eea Agreement. 283 For a discussion of the older cases, see K. Fløistad, The EEA Agreement in a Revised EU Framework for Welfare Services, Studies in European Economic Law and Regulation 13 (Springer, 2018) 157–​190.

74 

Chapter 2

Mr. Bautista was still capable of regularly performing light work. As a result, the Liechtenstein authorities decided to terminate his invalidity pension. Mr. Bautista contested this decision as well as the medical examination leading to the decision. The referring court asked the efta Court whether it was possible for Mr. Bautista to challenge the findings of the institution of the place of stay or residence (here the Spanish Social Security Institute) in administrative proceedings against the debtor institution (here the Liechtenstein Institution), considering that the debtor institution is bound by those findings pursuant to the second sentence of Article 87(2) of the implementing Regulation. The efta Court recalled that the possibility under Article 87(2) of having the recipient of a social benefit to be examined in his country of stay or residence is to enable that recipient from exercising his right to free movement.284 That rule indeed provides that the debtor institution is bound by the findings of the institution of the place of stay or residence unless the debtor institution has reserved the right to have the beneficiary examined by a doctor of its choice.285 The efta Court specified that the binding effect mentioned in Article 87(2) concerns solely the medical findings and not the legal assessment of the entitlement to benefits.286 Concerning the prohibition for the beneficiary to challenge the medical examination in proceedings related to the debtor institution, the efta Court found that there was nothing in the wording of Article 87 preventing it.287 Since there is a possibility under Liechtenstein administrative and procedural law for a recipient of invalidity benefits staying or residing in Liechtenstein to challenge a decision by the Liechtenstein Insurance Fund, such possibility should also exist for those recipients staying or residing in another eea State according to the principle of equal treatment enshrined in Article 4 of Regulation 883/​2004.288 The case E-​24/​15 was very similar in facts to the situation in case E-​13/​15. In E-​24/​15, the recipient of the invalidity pension being reduced was Mr. Waller, a German national, residing in Germany. The Liechtenstein Invalidity Insurance Fund had asked the German Statutory Pension Scheme to perform a medical 284 285 286 287 288

Case E-​13/​15 Abuelo Insua Juan Bautista [2015] EFTA Court Report 720, para.37. Case E-​13/​15 Abuelo Insua Juan Bautista [2015] EFTA Court Report 720, para.39. Case E-​13/​15 Abuelo Insua Juan Bautista [2015] EFTA Court Report 720, para.40. Case E-​13/​15 Abuelo Insua Juan Bautista [2015] EFTA Court Report 720, para. 41. Case E-​13/​15 Abuelo Insua Juan Bautista [2015] EFTA Court Report 720, para.42.

v Liechtensteinische Invalidenversicherung v Liechtensteinische Invalidenversicherung v Liechtensteinische Invalidenversicherung v Liechtensteinische Invalidenversicherung v Liechtensteinische Invalidenversicherung

The EU legal framework on social security coordination

75

examination. The medical examination concluded that Mr. Waller was capable of working less than three hours per day. Based on that medical examination as well as on information given by the general practitioner of Mr. Waller stating that he was no longer capable of working, the Liechtenstein Insurance Fund decided to reduce the invalidity pension of Mr. Waller from 100 to 50%. Mr. Waller started an administrative complaint against that decision where the Liechtenstein Insurance Fund learnt that under the German social security law, a work capacity of less than three hours per day corresponded to full incapacity. The same question as in E-​13/​15 was asked to the efta Court concerning the binding effect of the medical examination conducted by the institution of the place of stay or residence. The efta Court merely repeated its findings from E-​13/​15 in order to conclude that the Liechtenstein institution was indeed bound by the medical examination conducted by the German institution.289 With its second question, the referring court asked whether the binding effect of the medical examination were applicable to court proceedings or if it concerned the administrative proceedings. The efta Court noted that nothing in the wording of Article 87 precluded the binding effect to also apply to court proceedings.290 Nonetheless, the efta Court noticed that Mr. Waller did not wish to challenge the medical examination but on the contrary, to ask for a reexamination of his invalidity entitlement on the basis of that medical examination.291 Relying on the principle of mutual trust and the principle of loyalty laid down in Article 3 eea, the efta Court found that the authorities, including the courts, of an eea State are not entitled to scrutinize medical findings when the debtor institution is bound by those findings according to Article 87(2) of the implementing Regulation.292 The next case, E-​11/​16 dealt with the reimbursement of hospital costs borne by an institution from one eea State for an accident that happened in another eea State. Mr. Wille, a German national insured in Germany, was injured in a car accident while on holiday in Norway. After the accident, Mr. Wille was brought to a hospital in Norway where he received emergency treatment. At his own request, he was transferred to a hospital in Germany to have the surgeries

289 290 291 292

Case E-​24/​15 Walter Waller v Liechtensteinische Invalidenversicherung [2016] EFTA Court Report 527, paras. 25–​32. Case E-​24/​15 Walter Waller v Liechtensteinische Invalidenversicherung [2016] EFTA Court Report 527, para.39. Case E-​24/​15 Walter Waller v Liechtensteinische Invalidenversicherung [2016] EFTA Court Report 527, para. 40. Case E-​24/​15 Walter Waller v Liechtensteinische Invalidenversicherung [2016] EFTA Court Report 527, para. 41.

76 

Chapter 2

needed. Upon complications, his hospital stay in Germany was prolonged. The insurer of the motor vehicle that caused the accident agreed to reimburse the costs incurred by Mr. Wille and paid by his German insurer, except for several costs that would not be entitled to compensation under Norwegian law. The questions asked to the efta Court essentially concerned the law to be applied in the case of the reimbursement of the costs. The first costs disputed by the Norwegian insurer were the costs related to the hospital treatment in Norway which should not have been paid directly by Mr. Wille thanks to his European Health Insurance Card but instead by the Norwegian public health service. The second costs disputed related to his hospital stay in Germany which was due to Mr. Wille’s choice to be treated in Germany. The efta Court was thus asked to interpret Article 93(1) of Regulation 1408/​71 which was the applicable legislation at the time the events occurred. Article 93(1) concerns the right to seek reimbursement in situations where the institution responsible for benefits is located in an eea State other than that in which the injury occurred. That provision provides that the institution has then the right to exercise its rights of action or to be subrogated to the rights which the recipient has against the third party, provided for by the legislation which it administers. This means that Article 93(1) requires the national court to apply the law of the eea State to which the institution responsible is subject to determine whether and to what extent that institution is subrogated by law to the rights of the injured party or has direct rights against the third party liable. The efta Court found that the argument put forward by the Norwegian insurer as to prevent the German insurer from filing a claim against a responsible third party for the costs related to hospital treatment which should normally have been borne by the Norwegian public health system would nullify the effect of Article 93(1).293 The efta Court also found the argument concerning the refusal to compensate the costs related to the treatment in Germany incompatible with Article 93(1).294 The efta Court then held that, under Article 93(1) of Regulation 1408/​ 71, eea States had to recognize a subrogated or direct right as provided for under the law of the eea State to which the institution is subject.295 Finally, E-​2/​18 concerned a dispute over the health insurance of a pensioner. Mr. C is a Spanish national who has worked in Liechtenstein for 22 years. Since 293 294 295

Case E-​11/​16 Mobil Betriebskrankenkasse v Tryg Forsikring [2017] EFTA Court Report 384, para.54. Case E-​11/​16 Mobil Betriebskrankenkasse v Tryg Forsikring [2017] EFTA Court Report 384, para.54. Case E-​11/​16 Mobil Betriebskrankenkasse v Tryg Forsikring [2017] EFTA Court Report 384, para.57.

The EU legal framework on social security coordination

77

December 2000, he has received a disability pension and is insured under the mandatory health insurance under Liechtenstein law. After June 2003, C resided in Spain where he registered with the Spanish National Social Security Institution, using an E121 form issued by his Liechtenstein health insurer proving that he is insured there. C suffers from a chronic disease and after several bills for hospital care, his Liechtenstein insurer informed him that it would no longer cover his costs at the Spanish private healthcare institutions up to 31 March 2016. Instead, the Liechtenstein insurer decided that it would pay a fixed contribution daily towards care costs for the period after that date. The first two questions that efta Court had to answer related to the mandatory procedure under Article 24 of Regulation 883/​2004 for the provision of benefits in kind for a person who receives a pension from one eea State but resides in another eea State, where the State of residence has refused benefits in kind to the pensioner on the basis that those benefits fall outside the scope of its social ­security system. The efta Court recalled that the conflict rules provided in Regulation 883/​2004 are mandatory meaning that the insurer and the insured person cannot choose freely which legislation is applicable to their situation.296 Then the efta Court explained that Article 24(1) of Regulation 883/​2004 covers specifically situations where the pensioners would not be entitled to benefits in kind in the State of residence given the fact that the specific benefit falls outside the scope of the State of residence social security system.297 Article 24(1) then entitles the pensioner to receive benefits in kind from the institution of the place of residence at the expense of the competent institution in the eea State under whose legislation the pension is paid.298 In order to benefit from Article 24(1), the pensioner such as Mr. C. must be able to demonstrate that he has not been entitled to receive the benefits in kind from the State or residence.299 From the files submitted to its court, the efta Court concluded that Mr. C. was not entitled to the benefits in kind in Spain and therefore could ask for reimbursement of his costs directly to the Liechtenstein insurer.300 296 297 298 299 300

Case E-​2/​18 C v Concordia Schweizerische Kranken-​und Unfallversicherung Landesvertretung Liechtenstein [2019] EFTA Court, not yet reported, para. 47. Case E-​2/​18 C v Concordia Schweizerische Kranken-​und Unfallversicherung Landesvertretung Liechtenstein [2019] EFTA Court, not yet reported, para. 54. Case E-​2/​18 C v Concordia Schweizerische Kranken-​und Unfallversicherung Landesvertretung Liechtenstein [2019] EFTA Court, not yet reported, para. 53. Case E-​2/​18 C v Concordia Schweizerische Kranken-​und Unfallversicherung Landesvertretung Liechtenstein [2019] EFTA Court, not yet reported, para. 55. Case E-​2/​18 C v Concordia Schweizerische Kranken-​und Unfallversicherung Landesvertretung Liechtenstein [2019] EFTA Court, not yet reported, para. 57.

AG, AG, AG, AG, AG,

78 

Chapter 2

Overall, concerning the extension of Regulation 883/​2004 to the eea efta States, one can say that the social security coordination between the EU and the eea efta States is the most extensive coordination to be found currently between the EU and non-​EU countries, in addition to the one with ­Switzerland. 2.1.2

The EU-​Swiss Agreement on the Free Movement of Persons (afmp) 2.1.2.1 Purpose of the afmp As a founding member of the efta, Switzerland has a long history of bilateral relations with the EU. In 1972, a Free Trade Agreement was concluded between Switzerland and the European Economic Community.301 In the 1980’s, Switzerland participated in the negotiations of the eea Agreement with the eec and the other efta States. However, the eea Agreement was rejected in a Swiss referendum in 1992 mainly due to the institutional framework that was considered by the Swiss electorate as an impairment of their sovereignty.302 Following the rejection of the eea Agreement, the Swiss Confederation and the EC adopted a sectoral approach whereby they concluded bilateral agreements in key sectors of cooperation. This led in 1999 to a new step in the cooperation between the two Contracting Parties where no less than seven sectoral agreements were concluded. Those seven sectoral agreements were then completed by nine other bilateral agreements in 2004. The Agreement on the Free Movement of Persons (afmp)303 was part of the first package of bilateral agreements. It is also the only bilateral agreement from 1999 that was concluded as a mixed agreement, i.e. concluded by the EC and its Member States. Therefore, the EU, the Member States and the Swiss Confederation all had to ratify it. As a result, when ten new Member States joined the EU in 2004, the Swiss Confederation had to approve the extension of the afmp to include those Member States. Similarly, the Swiss Confederation approved the extension of the afmp to Bulgaria and Romania in 2009 and to Croatia in 2017.

301 Agreement between the European Economic Community and the Swiss Confederation, [1972] OJ L 300/​189. 302 C. Kaddous, ‘The relations between the EU and Switzerland’, in A.  Dashwood & M.  Maresceau (Eds.), Law and Practice of EU External Relations. Salient Features of a Changing Landscape (Cambridge University Press, 2008), p. 228. 303 Annex ii of the Agreement between the EC and its Member States on the one hand, and the Swiss Confederation on the other, on the free movement of persons, [2002] OJ L 114/​6.

The EU legal framework on social security coordination

79

While the objective of the sectoral agreements was to strengthen the economic ties between the contracting parties,304 the content of the afmp ­addressed the extension of the EU rules on the free movement of persons to nationals of the Swiss Confederation.305 The particularity of the afmp resided in the fact that the free movement of persons was meant to be liberalised in stages over a period of 12 years.306 In order to provide for the fullest possible extension of the EU rules on free movement of persons, rules on social security coordination were included in the afmp and in its annex ii. If one compares the sectoral agreements that the Swiss Confederation has concluded with the EU and its Member States and the eea Agreement, one striking difference is the limited institutional framework in the sectoral agreements. Joint Committees have been created for each sectoral agreement. Those Joint Committees are composed of representatives of the Contracting Parties to the specific sectoral agreements. The Joint Committees take care of the administration and the compliance of the Contracting Parties with the application of the sectoral agreements. In addition, the Joint Committees can make recommendations and modify the sectoral agreements or their annexes if it is permitted by the sectoral agreements themselves. In relation to the afmp, the Joint Committee can modify Annexes ii and iii of the Agreement but not the Agreement itself neither its Annex i.307 Contrary to the efta Court under the eea Agreement, there is no joint judicial body competent to interpret the provisions of the sectoral agreements between the EU and the Swiss Confederation. Instead, the national courts of the Member States and of the Swiss Confederation can interpret the sector agreements differently taking into account the specificity of their own legal system.308 The uniformity of interpretation is however ensured within the EU thanks to the possibility for national courts of the Member States to send preliminary ruling questions about the 304

Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para. 53; Case C-​506/​10 Graf and Engel, ECLI:EU:C:2011:643, para. 33. 305 Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para. 55; See the Preamble of the EU-​Swiss Agreement on the Free Movement of Persons. 306 Article 10 of the afmp Agreement. C.  Kaddous, ‘The relations between the EU and Switzerland’, in A.  Dashwood & M.  Maresceau (Eds.), Law and Practice of EU External Relations. Salient Features of a Changing Landscape (Cambridge University Press, 2008), 232; D.  Grossen, P.  Gasser & D.  Veuve, ‘Accord sur la libre circulation des personnes/​ Abkommen über die Freizügigkeit der Personen’, Dossier de droit européen 8 (2001), 259–​311. 3 07 Article 18 of the afmp. 308 C. Kaddous, ‘The relations between the EU and Switzerland’, in A.  Dashwood & M.  Maresceau (Eds.), Law and Practice of EU External Relations. Salient Features of a Changing Landscape (Cambridge University Press, 2008), 241.

80 

Chapter 2

sectoral agreements to the Court of Justice. It must be added that Article 16(2) of the afmp makes sure that the provisions of the afmp that includes concepts of Community law must be read in light of the case law of the Court of Justice rendered prior to the date of signature of the afmp. For case law rendered after the date of signature of the afmp, it is up to the Joint Committee to draw the implications of such case law for the afmp. The lack of institutional framework between the EU and the Swiss Confederation was meant to be solved by the Institutional Framework Agreement309 negotiated for four years, between May 2014 and December 2018. That Institutional Framework Agreement provides for the institutional structure for market access agreements between the EU and Switzerland. Therefore, it covers both the existing market access agreements (free movement of persons, overland transport, civil aviation, technical barriers to trade, and agriculture) and the future ones (e.g. an electricity agreement is currently under negotiation). The Institutional Framework Agreement is remarkable as it includes a provision (Article 5 of the draft negotiated text) on the ‘dynamic takeover’ of EU law for the purpose of the bilateral agreements. This ‘dynamic takeover’ requires that, when the EU adopts an act related to the subject covered by the bilateral agreements, the bilateral agreements need to be updated accordingly and as fast as possible. The Swiss Federal Council interprets this provision as meaning that the Swiss Confederation may decide autonomously whether to incorporate any development in EU law into the relevant market access agreement. Furthermore, certain subjects have been exempted from this ‘dynamic takeover’ such as the export of some social security benefits.310 The Swiss government tried to include three other exemptions from the ‘dynamic takeover’ ­provision:  the accompanying measures, Directive 2004/​38, and the amendment to Regulation 883/​2004 currently being negotiated at the EU level. Those three exemptions were however not agreed upon by the EU as they were considered to form an integral part of the internal market. In lack of agreement on those three exemptions, the solution was found to submit any disagreement on the takeover of EU law by the Swiss Confederation to an arbitration tribunal. Article 10 of the draft Institutional Framework Agreement as well as the Protocol on the arbitration tribunal provide for the details of such a dispute 309 The draft Institutional Framework Agreement can be found on the Swiss Federal Council website, available at https://​www.fdfa.admin.ch/​dea/​en/​home/​verhandlungen-​offene-​ themen/​verhandlungen/​institutionelles-​abkommen.html, last accessed on 31 May 2019. It is only available in the three official languages of Switzerland. The author consulted the French version. 310 Protocol 2 of the draft Institutional Framework Agreement.

The EU legal framework on social security coordination

81

settlement mechanism. Article 10 provides that in case of difficulty in interpreting or applying the Institutional Framework Agreement, the issue should be first solved by the Joint Committee. If the Joint Committee does not come to an agreement on the issue within 3 months, then either Switzerland or the EU can ask for the matter to be settled by an arbitration tribunal.311 Despite the fact that the EU and Switzerland reached an informal agreement in December 2018, Switzerland has still not approved formally the draft Institutional Framework Agreement. On 7 December 2018, the Swiss Federal Council decided to submit the text for public consultation. According to the Federal Council, the goal of this public consultation is ‘to reach a consolidated position in order to seek further dialogue with the EU if necessary.’.312 However, the EU has emphasised that the conclusion of the Institutional Framework Agreement as agreed by the negotiator was a precondition for the EU to conclude future agreements on Swiss participation in the EU’s internal market.313 At the time of writing,314 Switzerland has still not formally endorsed the draft Institutional Framework Agreement and therefore the rules under the bilateral agreements remain applicable. 2.1.2.2 The Social Security Coordination Rules under the afmp Article 8 of the afmp calls for social security coordination measures to be taken by the Contracting Parties. Those measures should include provisions on equal treatment, the law applicable, the aggregation of all periods taken into consideration by the national legislation of the countries concerned, entitlement to benefits for persons residing in the territory of the Contracting Parties, and mutual administrative assistance and cooperation between the authorities and institutions of the Contracting Parties. Annex ii of the afmp concerns the specific provisions on social security coordination. Annex ii of the afmp in fact contains references to the EU acts on social security coordination (Regulation 1408/​71 and its implementing Regulation 574/​72) that should apply also to the Swiss Confederation.315 When 3 11 Article 10(2) of the draft Institutional Framework Agreement. 312 Swiss Federal Council, Press release, ‘European policy-​Federal Council decides to launch consultations on the draft institutional agreement’, available at https://​www.admin.ch/​ gov/​en/​start/​documentation/​media-​releases.msg-​id-​73292.html, last accessed on 31 May 2019. 313 Council of the EU, Press Release 116/​19, ‘Council conclusions on EU relations with the Swiss Confederation’. 314 Until 31 May 2019. 315 Despite the fact that the afmp contains references to the EU legislation, its meaning should be interpreted in the context of the afmp. Hence the interpretation by the Court of Justice concerning the EU legislation cannot be applied automatically by analogy to

82 

Chapter 2

Regulation 1408/​71 was replaced by Regulation 883/​2004,316 the references to Regulation 883/​2004 were therefore integrated to the Annex ii.317 It should be noted that Regulation 859/​2003 and its successor Regulation 1231/​2010 on the extension of social security coordination schemes to third-​country nationals have not been integrated to Annex ii and therefore does not apply to the Swiss Confederation. In addition to the references to the EU legislation on social security coordination contained in Annex ii of the afmp, there is also a reference to social security in the equal treatment provision enshrined in Article 9 of the Annex i of the afmp. Article 9(2) provides for equal treatment of employed persons and their family members with regard to welfare benefits. This provision has been interpreted in the Grimme case318 by the Court of Justice. Mr Grimme was a German national, director of a branch established in Germany of a Swiss firm. Mr Grimme wanted to rely on Article 9 of the Annex i of the afmp in order to claim a breach of the equal treatment provision concerning his compulsory membership, as an employed worker, of the German statutory pension insurance scheme. According to him, his compulsory membership required by German law did not respect the provision on equal treatment as members of the managing board of companies limited by shares governed by German law were exempted of such a compulsory membership.319 The Court of Justice however found that Article 9 of the Annex i of the afmp was not applicable to Mr Grimme. The Court of Justice held that Article 9 only concerns ‘the case of discrimination by reason of nationality against a national of a Contracting Party in the territory of another Contracting Party’.320 However, Mr. Grimme

the interpretation of the afmp Agreement. Case C-​270/​80 Polydor and Others v Harlequin and Others, ECLI:EU:C:1982:43. For a discussion on the Polydor principle within the afmp Agreement, See C. Tobler, ‘Context-​related Interpretation of Association Agreements. The Polydor Principle in a Comparative Perspective: EEA law, Ankara Association Law and Market Access Agreements between Switzerland and the EU’, in D. Thym & M. Zoeteweij-​ Turhan (Eds.), Rights of Third-​Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015) 101–​126. 316 And Regulation 574/​72 by Regulation 987/​2009. 3 17 Decision No 1/​2012 of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons of 31 March 2012, replacing Annex ii to that Agreement on the coordination of social security schemes (2012/​ 195/​EU), [2012] OJ L 103/​51. 318 Case C-​351/​08 Grimme, ECLI:EU:C:2009:697. 319 Case C-​351/​08 Grimme, ECLI:EU:C:2009:697, para.46. 320 Case C-​351/​08 Grimme, ECLI:EU:C:2009:697, para.48.

The EU legal framework on social security coordination

83

was a German national working in Germany and wanted to rely on the equal treatment provision with regard to his situation in Germany. 2.1.2.3

The Status of Switzerland under the EU Social Security Coordination Rules For the purpose of the application of the social security coordination rules provided by Regulation 1408/​71 and Regulation 574/​72, the Court of Justice held in Schwemmer,321 in Xhymshiti,322 and in UK v. Council323 that the Swiss Confederation should be equated to a Member State of the EU. In Schwemmer, the question asked by the referring court concerned the interpretation of Article 76 of Regulation 1408/​71 and Article 10 of Regulation 574/​72 on overlapping family benefits from Germany and Switzerland.324 The Court of Justice clarified that Regulation 1408/​71 and Regulation 574/​72 were applicable to the situation at stake due to the fact that the expression ‘Member States’ found in those Regulations is to be interpreted as referring not only to the Member States of the European Union covered by those acts but also to the Swiss Confederation.325 In the Xhymshiti case, the question was whether also Regulation 859/​2003, to which Switzerland is not a party, could be applied to third-​country nationals living in a Member State of the EU and working in Switzerland.326 Mrs and Mr Xhymshiti were third-​country nationals living in Germany with their two children. While Mrs Xhymshiti was unemployed, Mr Xhymshiti worked in ­Switzerland where he paid his social security contributions and received child allowances for his children who were German nationals.327 Mrs Xhymshiti received ‘top-​up’ child allowances for her first born from the German State but then was denied those benefits for her second child on the basis that her husband already received child allowances from Switzerland even though the Swiss allowances were lower than the German ones.328 The Court started its reasoning by recalling the two conditions to be fulfilled under Article 1 of Regulation 859/​2003 in order to trigger the application of the rules of Regulation 1408/​71 and Regulation 574/​72. The first condition is that the person 3 21 322 323 324 325 326 3 27 328

Case C-​16/​09 Schwemmer, ECLI:EU:C:2010:605, para.31. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para. 31. Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para. 65. Case C-​16/​09 Schwemmer, ECLI:EU:C:2010:605, paras.28–​29. Case C-​16/​09 Schwemmer, ECLI:EU:C:2010:605, para.31. This case has already been discussed in the context of the personal scope of Regulation 1231/​2010, see Chapter 2, p.32. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, paras. 18–​19. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, paras. 21–​23.

84 

Chapter 2

must be resident in one Member State and the second condition is that the situation must not be confined in all respects within a single Member State.329 The first condition was fulfilled as Mr Xhymshiti resided in Germany.330 The second condition was however the heart of the matter. Mr Xhymshiti considered that the second condition was also fulfilled since he worked in another State, namely Switzerland. However, the German authorities considered that the fact that he worked in Switzerland was irrelevant as Switzerland is not a Member State.331 The Court of Justice started by restating what was already held in Schwemmer, namely that, for the purpose of the application of Regulation 1408/​71 and Regulation 574/​72, Switzerland is to be equated with a Member State of the European Union.332 However, the Court of Justice also held that the same reasoning does not hold true for Regulation 859/​2003 to which Switzerland is not a party.333 As a result, Regulation 859/​2003 does not apply to third-​country nationals residing in one EU Member State but working in Switzerland (or vice-​versa). The status of Switzerland to be equated with a Member State of the European Union for the purpose of the social security coordination under Regulation 883/​2004 and its implementing Regulation 987/​2009 was confirmed in the UK v. Council case.334 That case concerned an action for annulment under Article 263 tfeu brought by the UK against a Council Decision on the position of the EU to be taken in the Joint Committee established by the afmp with the view to amend Annex ii on the coordination of social security schemes with references to the new legislation, Regulation 883/​2004 and Regulation 987/​2009. That case arose in the same context as the case against the Council Decision on the position of the EU to be taken in the eea Joint Committee explained above.335 As for the Council Decision in the context of the eea Committee, the Council Decision for the position of the EU in the EU-​Swiss Joint Committee was substantively based on Article 48 tfeu and procedurally based on Article 218(9) tfeu. The UK contested the use of Article 48 tfeu, advocating for the

3 29 330 331 332 333 334

335

Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para. 28. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para.29. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para.30. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para. 31. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para. 35. Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97; P.  Melin, ‘The Search of EU Competence(s) for the Externalization of Social Security Coordination:  Where There’s a Will, There’s a Way. Case C-​81/​13 United Kingdom v. Council (Turkish Case)’ 22 Maastricht Journal of European and Comparative Law (2015) 440–​453. Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589.

The EU legal framework on social security coordination

85

use of Article 79(2)(b) tfeu instead.336 With regard to the use of Article 48 tfeu in relation to the EU-​Swiss relationship, the Court held that it could use when ‘the third State has already been equated, under an agreement approved on the basis of Article 217 tfeu, with a Member State of the European Union for the purposes of applying Regulation No 1408/​71 and 574/​72 and the main aim of that decision is to reflect the updating of those regulations effected by Regulations No 883/​2004 and 987/​2009’.337 It should be noted that despite the fact that the EU has adopted the first bilateral agreements under the legal basis of Article 217 tfeu, these bilateral agreements do not contain the word ‘association’ in their texts. There are therefore not association agreements.338 As these cases show, the social security coordination system established with Switzerland, is the most extensive between the EU and a third-​country.339 The EU legislation on social security coordination340 has been extended to the Swiss Confederation. The extension even goes to the extent of considering the Swiss Confederation as a Member States of the EU for the purpose of the application of the EU social security coordination rules.341 Additionally, in cases concerned with Swiss nationals working in the EU or with EU nationals working in Switzerland, the Court has interpreted the rules on social security coordination indiscriminately as it would have interpreted it for an EU national working in the EU.342 2.1.3 The EU-​Turkey Association Agreement 2.1.3.1 Purpose of the EU-​Turkey Association Agreement In 1963, the EU and Turkey concluded an Association Agreement, also called the Ankara Agreement.343 Originally adopted with the idea of facilitating the accession of the Republic of Turkey to the then European Economic 3 36 Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para.28. 337 Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para. 65. 338 M. Maresceau, Bilateral agreements concluded by the European Community (Collected Courses of The Hague Academy of International Law, Brill 2004), p.155. 339 Together with the system with the eea efta States. 340 With the exception of Regulation 859/​2003 and Regulation 1231/​2010. 341 Case C-​16/​09 Schwemmer, ECLI:EU:C:2010:605, para.31; Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698, para. 31; Case C-​ 656/​ 11 United Kingdom v Council, ECLI:EU:C:2014:97, para.65. 342 See for example, on entitlement to family benefits:  Case C-​ 257/​ 10 Bergström, ECLI:EU:C:2011:839; on the money conversion between Switzerland and an EU Member State:  Case C-​250/​13 Wagener, ECLI:EU:C:2014:278; on the concept of family benefits: Case C-​216/​12 Hliddal and Bornand, ECLI:EU:C:2013:568. 343 Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 [1977] OJ L 361/​1.

86 

Chapter 2

Community,344 the Agreement was aimed at providing the promotion of a continuous and balanced strengthening of trade and economic relations between the Contracting Parties.345 The relationship between the EU and Turkey must be seen in stages progressing towards accession.346 The first stage, called the preparatory stage, started with the Ankara Agreement. In 1970, the preparatory stage was accomplished and the Contracting Parties decided to adopt a transitional stage347 by concluding an Additional Protocol348 to the Ankara Agreement. Throughout the different stages, the Court of Justice has been extremely important in shaping the rights of Turkish citizens in the EU in over 60 cases.349 In the field of labour migration, Article 12 of the Agreement called for the progressive achievement of freedom of movement of workers, guided by Articles 48, 49 and 50 of the eec Treaty (now Articles 45–​48 tfeu). Title ii of the Additional Protocol is about movement of persons and services. Within this Title, Article 36 refers to Article 12 of the Ankara Agreement by reaffirming the progressive securing of the freedom of movement of workers and providing that the Association Council350 should adopt implementing measures for that purpose. The importance of implementing measures by the Association Council should not be underestimated as the case of Demirel demonstrates.351 The 3 44 Fourth Recital of the Preamble and Article 28 of the Ankara Agreement. 345 Article2(1) of the Ankara Agreement. 346 The current diplomatic situation between Turkey and the EU does not leave the possibility to conceive any future accession. The European Parliament has called for the suspension of the accession talks with Turkey, See European Parliament, Draft Report on the 2016 Committee Report on Turkey, 2016/​2308(ini), 18th April 2017. 347 Second, third and fourth Recitals of the Preamble of the Additional Protocol. 348 Additional Protocol and Financial Protocol signed in Brussels on 23 November 1970, annexed to the Agreement establishing the Association between the European Economic Community and Turkey and on measures to be taken for their entry into force, [1972] OJ L 293/​3. 349 For a detailed overview of those cases:  K. Groenendijk, ‘The Court of Justice and the Development of eec-​Turkey Association Law’, in D. Thym & M. Zoeteweij-​Turhan (Eds.) Rights of Third-​Country Nationals under EU Association Agreements:  Degrees of Free Movement and Citizenship (Brill 2015) 39–​61. For the importance of the Court of Justice in the context of the Association Agreement, See C. Kaddous, ‘Le rôle de la Cour de Justice dans l’interprétation de l’accord d’association cee-​Turquie’, in B. Bonnet (Ed.), Turquie et Union européenne. État des lieux (Bruylant 2012) 79–​103. 350 The Association Council is the body composed of representatives of Turkey, the Member States and the European Commission. Its role is to implement the Ankara Agreement and the subsequent Protocols adopted. 351 Case C-​12/​86 Demirel, ECLI:EU:C:1987:400.

The EU legal framework on social security coordination

87

Court of Justice was asked by a German court whether Article 12 of the Ankara Agreement and Article 36 of the Protocol, read in conjunction with Article 7 of the Ankara Agreement were directly applicable.352 Mrs Demirel, a Turkish national, was subject to an expulsion order. Mrs Demirel joined her husband, a Turkish national also who was living and working in Germany since 1979.353 In order to stay in Germany and annul the expulsion order, Mrs Demirel wanted to rely on the free movement provisions found in the Ankara Agreement and its Protocol.354 The Court held that Article 12 of the Agreement and Article 36 of the Protocol merely set out a program for the progressive achievement of movement of workers.355 In that context, those provisions were deemed to be insufficiently precise and unconditional to be capable of governing directly the movement of workers.356 Decision 1/​80 is one of the measures adopted by the Association Council in order to implement Article 12 of the Ankara Agreement and Article 36 of the Additional Protocol.357 Despite the fact that those articles are calling for the securing of the freedom of movement of workers, Decision 1/​80, in fact, concerns mostly the situation of Turkish workers already working in the Member States.358 Hence, the admission of Turkish workers in the territory of the Member States is outside the scope of Decision 1/​80 and remains a national competence.359 2.1.3.2

The Social Security Coordination Rules under the EU-​Turkey Association Agreement: Article 39 of the Additional Protocol and Decision 3/​80 In the context of facilitating the movement of workers, Article 39 of the Additional Protocol requires the Contracting States to adopt measures on social security coordination for workers of Turkish nationality moving within the Community and their families residing in the Community.360 Article 39(2) 3 52 353 354 355 356 357

Case C-​12/​86 Demirel, ECLI:EU:C:1987:400, para.13. She joined him on the basis of a visa for visiting purposes, not for family reunification. Case C-​12/​86 Demirel, ECLI:EU:C:1987:400, paras.6–​7. Case C-​12/​86 Demirel, ECLI:EU:C:1987:400, paras. 19–​23. Case C-​12/​86 Demirel, ECLI:EU:C:1987:400, para.23. With regard to the situation in Demirel, it should be said that Decision 1/​80 does not concern the aspect of family reunification, See Case C-​12/​86 Demirel, ECLI:EU:C:1987:400, para.22. 358 Article 6 of Decision 1/​80. 3 59 Case C-​36/​96 Günaydin, ECLI:EU:C:1997:445, para. 23; Case C-​ 37/​ 98 Savas, ECLI:EU:C:2000:224, para.65; Case C-​317/​01 Abatay, ECLI:EU:C:2003:572, para.65. 360 The word ‘Community’ should be now understood as referring to the ‘Union’.

88 

Chapter 2

provides that those measures should comprise aggregation of periods of insurance or employment completed in individual Member States in respect of old-​age, death and invalidity benefits, as well as in the context of the provision of health services. However, Article 39(2) also makes clear that these measures should not create any obligation on Member States to take into account periods completed in Turkey. Article 39(3) further provides that the measures to be adopted by the Association Council should ensure that family allowances are paid if a worker’s family member resides in the EU. Hence, it should be noted that the Additional Protocol does not demand for measures to be concluded on the payment of family benefits for family members residing in the EU. Finally, Article 39(4) provides for measures to be taken on payment, back to Turkey, of old-​age pensions, death benefits and invalidity pensions.361 In order to implement those measures, the Association Council adopted Decision 3/​80 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families.362 Decision 3/​80 applies to (1) workers who are, or have been subject to the legislation of one or more Member State and who are Turkish nationals, to (2) family members of these workers, who are resident in the territory of one of the Member States, and to (3) the survivors of these workers. Hence, Decision 3/​80 is not based on reciprocity. Decision 3/​80 is only meant to apply to Turkish nationals and their family members who are or have been subject to the legislation of one or more Member States. It does not apply to EU citizens and their family members who are or have been subject to Turkish legislation. Concerning the material scope, Decision 3/​80 refers to the benefits defined in Regulation 1408/​71 on the social security coordination for EU citizens moving across the Member States. As the rules of Regulation 1408/​71 are complemented by the rules of the implementing Regulation 574/​72, the rules contained in Decision 3/​80 were intended to be further implemented by an act of the Council of the EU.363 In that regard, the European Commission proposed a Council Regulation which was never adopted by the Council of the EU.364

3 61 Article 39(4) of the Additional Protocol. 362 Decision 3/​80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C110/​60. 363 Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, paras. 32–​33. 364 Proposal for a Council Regulation (eec) implementing within the European Economic Community Decision No 3/​80 of the eec-​Turkey Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C 110/​1.

The EU legal framework on social security coordination

89

Despite its adoption, Decision 3/​80 did not contain a provision on its entry into force and needed further implementation by the Contracting States. In the Taflan-​Met case, the lack of provision of entry into force of Decision 3/​80 and therefore its binding force were raised in the Court of Justice.365 In Taflan-​ Met, the plaintiffs in the national proceedings were Turkish nationals, residing in Turkey, and widows of other Turkish nationals who were working in different Member States, including the Netherlands. After their husbands’ death, the widows applied in the different Member States366 for widows’ pensions. The Netherlands was the only Member State that rejected their applications. Dutch law requires the risk to materialise at the time the person is covered by Dutch law, however the Turkish nationals returned to Turkey and were not covered by Dutch law at the time of death.367 If Decision 3/​80, and in particular its Articles 12 and 13, were applicable, the widows could benefit from the widows’ pension in the Netherlands. However, due to the lack of provision on its entry into force, the Dutch court asked the Court of Justice whether, and if so, when Decision 3/​80 entered into force. The Dutch court also asked whether Articles 12 and 13 of Decision 3/​80 could have direct effect. With regard to the first question, the Court of Justice held that despite the fact that the Decision does not contain any provision on its entry into force, it should be considered that the Decision entered into force on the date of its adoption.368 As a result, the Member States were bound by Decision 3/​80 since 19 September 1980, its date of adoption. Concerning the second question referred on the direct effect of Articles 12 and 13 of Decision 3/​80, the Court of Justice recalled that ‘a provision of an agreement concluded by the Community with non-​member countries must be regarded as being directly applicable when, regard being had to its wording and the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measures.’.369 The Court then held that Decision 3/​80, by its nature, was intended to be implemented by an act of the Council.370 In that regard, the Court noted that the Commission 365 For a detailed discussion on the Taflan-​Met case, see H. Verschueren, ‘Besluit 3/​80 (sociale zekerheid) van de Associatieraad EEG-​Turkije na het arrest Taflan-​Met: is er nog leven na de dood?’ Migrantenrecht (1997) 29–​34. 366 The other Member States were Belgium and Germany. Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, para.9. 367 Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, paras.9–​10. 368 Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, paras. 17–​21. 369 Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, para. 24; Case 12/​ 86 Demirel, ECLI:EU:C:1987:400, para.14; Case C-​192/​89 Sevince, ECLI:EU:C:1990:322, paras.14–​15. 370 Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, para. 33.

90 

Chapter 2

had proposed a regulation to implement, inter alia Articles 12 and 13, in 1983 but that regulation was not yet adopted.371 Consequently, the Court found that Articles 12 and 13 of Decision 3/​80 did not have direct effect.372 In the Sürül case, one of the questions referred to the Court of Justice concerned the direct effect of another provision of Decision 3/​80: Article 3(1) on equal treatment.373 Mr and Mrs Sürül were Turkish nationals lawfully resident in Germany. Mrs Sürül received family allowances for a child born within the German territory during her lawful residence. However, as soon as Mrs Sürül did not comply with the requirement of residence entitlement (Aufenthaltsberechtigung) or a residence permit (Aufenthaltserlaubnis), the German authorities stopped the payment of the family allowances. On the question about the direct effect of the right to equal treatment enshrined in Article 3(1) of Decision 3/​80, the Court of Justice held that the provision on equal treatment under Article 3(1) constituted ‘merely the implementation and the concrete expression (…) of the general principle of non-​discrimination on grounds of nationality of Article 9 of the Agreement, which refers to Article 7 of the eec Treaty’.374 The Court of Justice concluded that Article 3(1) of Decision 3/​80 was a precise and unconditional provision, and therefore individuals were able to rely on it before the courts.375 In the Öztürk case,376 the Court added that the principle of non-​ discrimination enshrined in Article 3 of Decision 3/​80 is not limited to the Member State of residence. This case was about the refusal by the Austrian pension fund to grant Mr Öztürk an early old-​age pension in the event of unemployment on the ground that he had not received, within a certain period prior to his application for a pension, unemployment insurance benefits from that Member State alone. The Court held that Mr Öztürk could rely on Article 3 of Decision 3/​80 against Austria for the periods of insurance completed in Austria.377 Another case on the direct effect of a provision of Decision 3/​80 was ­Akdas.378 This case concerned the payment of invalidity and supplementary 3 71 372 373 3 74 375 376 377 378

Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, para. 34. Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315, paras 37–​38. Case C-​262/​96 Sürül, ECLI:EU:C:1999:228. For a detailed discussion on this case, see H. Verschueren, ‘The Sürül judgment: equal treatment for Turkish workers in matters of social security’ European Journal of Migration Law (1999) 371–​384. Case C-​262/​96 Sürül, ECLI:EU:C:1999:228, para.64. Case C-​262/​96 Sürül, ECLI:EU:C:1999:228, para. 74. Case C-​373/​02 Öztürk, ECLI:EU:C:2004:232. Case C-​373/​02 Öztürk, ECLI:EU:C:2004:232, paras.51–​52. Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346.

The EU legal framework on social security coordination

91

benefits to Turkish nationals who worked for a certain time in the Netherlands but then went back to reside in Turkey. According to a new Dutch law, the invalidity and supplementary benefits could not be exported anymore.379 The plaintiffs wanted to rely directly on Article 6(1) of Decision 3/​80 which includes a prohibition of withdrawal of benefits. The first question referred by the Dutch court was to know whether Article 6(1) of Decision 3/​80 had direct effect. According to the Court of Justice, the first paragraph of Article 6(1) prohibits in clear, precise and unconditional terms the withdrawal of the benefits listed in that provision by reason of the fact that the recipient resides in Turkey.380 Additionally, the Court held that this first paragraph of Article 6(1) needs to be distinguished from more technical provisions on social security coordination such as Articles 12 and 13, which, as the Court has held in Taflan-​ Met, do not produce direct effect.381 In addition to its importance for the direct effect of Article 6(1) of Decision 3/​80, the Akdas and others case is relevant when it comes to the consequences that the Court of Justice derived from Article 6(1). The Court found that this provision precluded the Netherlands from withdrawing the benefits from former Turkish migrant workers who returned to Turkey after losing their right to remain in the Netherlands because they became incapacitated in that Member State.382 The ruling in Akdas implied that Turkish migrant workers returning to Turkey could retain their rights to incapacity benefits whereas Dutch nationals would not benefit from such a right.383 Dutch nationals cannot rely on Decision 3/​80 as Decision 3/​80 is solely applicable to Turkish nationals. Furthermore, the benefit at stake in Akdas would be qualified as a special non-​ contributory benefit under Regulation 883/​2004 and would not be exportable pursuant to Article 70 of the Regulation. The case of Akdas has, since then, been watered down by the Court of Justice in the Demirci case.384 In Demirci, the facts were very similar to the fact of 379 Wet van 27 mei 1999, tot wijziging van de Ziektewet, de Wet op de arbeidsongeschiktheidsverzekering en enkele andere wetten in verband met de beperking van het exporteren van uitkeringen (Wet beperking export uitkeringen), Staatsblad van het Koninkrijk der Nederlanden 1999, 250. 380 Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346, para.68. 381 Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346, para. 70. 382 Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346, para. 96. 383 This situation has been characterised as a situation of ‘reverse discrimination’ by K. Eisele and A-​P. van der Mei. See K. Eisele & A.P. van der Mei, ‘Portability of Social Benefits and Reverse Discrimination of EU citizens vis-​à-​vis Turkish Nationals: Comments on Akdas’37 European Law Review (2012) 209–​211. 384 Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8.

92 

Chapter 2

Akdas. It concerned former Turkish migrant workers who worked and resided for many years in the Netherlands. They became incapacitated and therefore received invalidity as well as supplementary benefits. They decided to return to Turkey. The Dutch authorities decided to gradually withdraw the benefits due to the fact that they had left the Dutch territory. The important difference with Akdas is that the former Turkish migrant workers in Demirci acquired the Dutch nationality during their stay in the Netherlands. Due to their acquisition of the Dutch nationality, the Court found that they were in a very different position than the workers in Akdas.385 Their acquisition of the Dutch nationality entailed the acquisition of the EU citizenship which in turn entailed the possibility to move and reside freely in the European Union.386 When acquiring the nationality of a Member State, those former Turkish migrant workers should be treated as a national of that Member State.387 If the Court was to allow reliance on Decision 3/​80, it would place those nationals in a different position to any other nationals to whom the residence requirement applies for the entitlement to non-​contributory benefits.388 For those reasons, the Court held that they could not rely on Decision 3/​80 to object to the residence requirement imposed by the national legislation as a condition for receiving the supplementary benefits;389 nor could they rely on Article 6 of Decision 3/​80.390 The alignment of Decision 3/​80 with Regulation 833/​2004 which does not allow the export of non-​contributory benefits,391 has been promoted by the European Commission392 and the Council of Ministers who adopted its Decision on the position to be taken on behalf of the EU within the Association Council with the aim to replace Decision 3/​80.393 The Council Decision’ s aim to replace Decision 3/​80 resulted from a change in EU legislation, namely the 3 85 386 387 388 389 390 391 392

Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8, para.53 and 61. Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8, para. 56. Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8, para. 56. Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8, para. 59. Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8, para. 52. Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8 para.73. Article 70(4) of Regulation 883/​2004. European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 2.4. 393 Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​19.

The EU legal framework on social security coordination

93

replacement of Regulation 1408/​71 and Regulation 574/​72 by Regulation 883/​ 2004 and Regulation 987/​2009. That Council Decision was based on Article 48 tfeu. The United Kingdom together with Northern Ireland have challenged the use of that legal basis.394 The Court held that Article 48 tfeu should not have been the sole legal basis used. Instead, a combination of Article 48 tfeu with Article 217 tfeu should have been used.395 However, the Council Decision was not annulled by the Court since the omission of Article 217 tfeu as a legal basis did not have any effect on the content nor on the procedure.396 Despite the fact that there is a Council Decision on the position to be taken on behalf of the EU, the EU-​Turkey Association Council has still not adopted a decision updating Decision 3/​80 and the possibility of a future decision is very unlikely.397 Decision 3/​80 is therefore still the relevant instrument on social security coordination between the EU and Turkey. 2.1.4

The Euro-​Mediterranean Association Agreements (emaa s) with Algeria, Egypt, Jordan, Israel, Lebanon, Morocco and Tunisia 2.1.4.1 Purpose of the eema s The EU has concluded Euro-​Mediterranean Association Agreements (emaa s) with several countries from the Mediterranean region. In April 1975, the EU concluded bilateral Cooperation Agreements with Algeria, Tunisia and Morocco establishing a framework for cooperation between the EU and those countries.398 The main goals of that cooperation were to 394

Case C-​81/​13 United Kingdom v Council, ECLI:EU:C:2014:2449. P.  Melin, ‘The Search of EU Competence(s) for the Externalization of Social Security Coordination:  Where There’s a Will, There’s a Way. Case C-​81/​13 United Kingdom v. Council (Turkish Case)’ 22 Maastricht Journal of European and Comparative Law (2015) 440–​453; P. G. Andrade, ‘Privileged Third-​Country Nationals and Their Right of Free Movement and Residence to and in the EU: Questions of Status and Competence’, in E. Guild, C. J. Gortazar Rotaeche & D.  Kostakopoulou, The Reconceptualization of European Union Citizenship (Brill 2014) 121–​131. 395 Case C-​81/​13 United Kingdom v Council, ECLI:EU:C:2014:2449, paras.63–​64. 396 Case C-​81/​13 United Kingdom v Council, ECLI:EU:C:2014:2449, para.65; Please note that a further discussion of this case and the legal basis is provided in Chapter 5 of this research, pp.250–​252. 397 According to P.  Minderhoud, there is no interest from the Turkish government to adopt the new Decision. P. Minderhoud, ‘Decision 3/​80 of the EEC-​Turkey Association Council:  Significance and Developments’, in D.  Thym & M.  Zoeteweij-​Turhan (Eds.), Rights of Third-​Country Nationals under EU Association Agreements:  Degrees of Free Movement and Citizenship (Brill, 2015) 178. 3 98 Council Regulations (eec) No 2210/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the People’s Democratic Republic of Algeria, [1978] OJ L 263/​1; Council Regulation

94 

Chapter 2

promote regular dialogue on political and security matters, to foster economic, trade and financial cooperation and to ensure social, cultural and educational cooperation. During the Barcelona Conference in 1995,399 the Cooperation Agreements were replaced by the emaa s. Currently, the EU has concluded emaa s with seven countries:  Algeria,400 Egypt,401 Jordan,402 Israel,403 Lebanon,404 Morocco405 and Tunisia.406 Those emaa s have the same format and all contain provisions related to the coordination of social security. However, the scope and content of the social security provisions differ. 2.1.4.2

The Social Security Coordination Rules in the emaa s with Egypt, Lebanon and Jordan In terms of social security coordination, the least relevant emaa s are the ones with Egypt, Lebanon and Jordan. None of them provides for a precise provision on social security coordination but call for further dialogues on social

399 400 401 402 403 404 405 406

(eec) No 2211/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, [1978] OJ L 264/​1; Council Regulation (eec) No 2212/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Republic of Tunisia, [1978] OJ L 265/​1. Agreements are attached to these publications in the OJ. Barcelona Declaration adopted at the Euro-​Mediterranean Conference, 27–​28 November 1995. Available at http://​www.eeas.europa.eu/​euromed/​docs/​bd_​en.pdf. Last accessed on the 8 March 2018. Euro-​Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, [2005] OJ L 265/​1. Euro-​ Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part, [2004] OJ L 304/​1. Euro-​Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part, [2002] OJ L 129/​1. Euro-​ Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, [2000] OJ L 147/​1. Euro-​Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, [2006] OJ L 143/​1. Euro-​ Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, [2000] OJ L 70/​1. Euro-​ Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, [1998] OJ L 097/​2.

The EU legal framework on social security coordination

95

matters including the improvement of social security regimes and movement of workers.407 In order to cooperate on those goals, the Parties should undertake actions and programmes which may be coordinated by Member States or international organisations.408 Those emaa s also mention the importance of having a dialogue between the Parties on equal treatment and integration of workers in the host society.409 It is fair to conclude that the emaa s with Lebanon, Jordan and Egypt do not entail any tangible social security rights for workers. Rather, they contain political commitments for future cooperation on issues such as social security coordination. Those emaa s are designed with the prospect of migration from Egypt, Lebanon and Jordan to the EU, and not vice-​versa. 2.1.4.3 The Social Security Coordination Rules in the emaa with Israel In terms of scope and content of the provision related to social security, the emaa with Israel sits somewhere in the middle. While it does not provide for tangible rights either, it gives more guidance for the discussion on future social security coordination. Article 64 provides that in order to coordinate social security regimes, provisions on (1)  aggregation of periods of insurance, employment or residence for the purposes of the establishment of the right to old age, invalidity and survivors’ pensions and allowances and for the purposes of medical care for themselves and their families, (2) transfer of all pensions and allowances for old age, survivors, accident at work, occupational illness or invalidity, with the exception of non-​contributory payments, and (3) the entitlement to family allowances for the members of the workers’ families, should be adopted. The Council has adopted a Draft Decision in order to implement Article 64 of the emaa with Israel.410 However, that Draft Decision has not yet been adopted by the Association Council of the emaa with Israel. Even though 407 Articles 62 and 63 of the emaa with Egypt, Article 80 of the emaa with Jordan, Article 65 of the emaa with Lebanon. 408 Articles 82 and 83 of the emaa with Jordan and Article 65 of the emaa with Lebanon. 409 Article 80 of the emaa with Jordan and Articles 62 and 63 of the emaa with Egypt. 410 Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​ … of the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​Mediterranean Agreement (‘the Draft Decision’) [2010] OJ L 306/​21.

96 

Chapter 2

there might have been interests in adopting the Draft Decision, negotiations concerning the Draft Decision have not started due to political concerns from the EU with regard to the political situation in Israel.411 From a content perspective, the Draft Decision covers workers who are Israeli nationals or who are nationals of an EU Member States, and who are or have subject to the legislation of one of the Contracting State, as well as their family members.412, 413 The Draft Decision provides for equal treatment of the persons covered by the Draft Decision.414 Furthermore, the Draft Decision provides that exportable benefits-​i.e. old-​age, survivors’, accident at work and occupational diseases, and invalidity benefits, with the exception of special non-​contributory cash benefits which are listed either in Annex x to the Regulation 883/​2004 or, in the case of Israel, in the Annex set out in the Decision-​should not be subject to any reduction, modification, suspension, withdrawal or confiscation on the basis that the person is residing in the territory of the other Contracting State.415 Apart from those provisions, the rest of the Draft Decision concerns administrative cooperation between Israel and the Member States.416 Hence, the only thing that is not mentioned compared to Article 64 of the emaa is the aggregation of periods of insurance in the context of acquisition of old age, invalidity and survivors’ pensions and access to medical care for the b­ eneficiaries and their families. 2.1.4.4

The Social Security Coordination Rules in the emaa s with Algeria, Tunisia and Morocco The emaa s with Algeria, Tunisia and Morocco all contain the same provisions on social security. They provide for (1) equal treatment, (2) aggregation of p ­ eriods of insurance, employment or residence, (3)  entitlement to family ­allowances and (4)  transfer of benefits for migrant workers coming from ­Algeria, Tunisia and Morocco and their family members. 411 Interview with an European Commission official. This tense political relationship can also be attested by the fact that the last Association Council meeting between the EU and Israel was held in 2012. Council, Press Release 12938/​12, ‘Eleventh Meeting of the EU-​ Israel Association Council: Statement of the European Union’. 412 Article 2 of the Draft Decision. 413 Family members are defined in Article 1(f) of the Draft Decision as meaning, for the purposes of the legislation of a Member State, a member of the family within the meaning of Article 1(i) of the Regulation; or for the purposes of the legislation of Israel, a member of the family meaning of that legislation. 414 Article 3 of the Draft Decision. 415 Article 4 of the Draft Decision. 416 Articles 5–​10 of the Draft Decision.

The EU legal framework on social security coordination

97

Firstly, the emaa s with Algeria, Tunisia and Morocco entail a provision on treatment free from any discrimination based on nationality in the field of social security. For that purpose, social security encompasses branches of social security dealing with sickness and maternity benefits, invalidity, old-​age and survivors’ benefits, industrial accident and occupational disease benefits and death, unemployment and family benefits.417 Essentially, the branches of social security covered by those emaa s correspond to the branches of social security under Regulation 833/​2004.418 Secondly, the emaa s provide for aggregation of periods of insurance, employment or residence for the purpose of pensions and annuities in respect of old age, invalidity and survivor’s benefits, family, sickness and maternity benefits, and medical care for the workers and their family members resident in the Community.419 Thirdly, the emaa s with Algeria, Tunisia and Morocco add that the workers should receive family allowances for their family members residing in the ­Community.420 Fourthly, the emaa s contain a provision on the transfer of pensions or annuities in respect of old age, survivor status, industrial accident or occupational disease, or of invalidity resulting from industrial accident or occupational disease, except in the case of special non-​contributory benefits.421 Lastly, the emaa s mention that the Association Councils should adopt measures in order to implement those provisions. Such implementing measures still need to be taken. The Council has already adopted Draft Decisions422 417 Article 68 (1)  of the emaa with Algeria, Article 65 (1)  of the emaa with Tunisia and Article 65(1) of the emaa with Morocco. 418 The fact that the concept of ‘social security’ of the emaa s and of the Regulation on social security coordination for EU citizens are similar has been confirmed by the Court of Justice on numerous occasions. See for example, the Case C-​113/​97 Babahenini v Belgian State, ECLI:EU:C:1998:13, para. 26 on the emaa with Algeria and the Regulation 1408/​71. 419 Article 68 (2)  of the emaa with Algeria, Article 65 (2)  of the emaa with Tunisia and Article 65 (2) of the emaa with Morocco. 420 Article 68 (3)  of the emaa with Algeria, Article 65 (3)  of the emaa with Tunisia and Article 65 (3) of the emaa with Morocco. 421 Article 68 (4)  of the emaa with Algeria, Article 65 (4)  of the emaa with Tunisia and Article 65 (4) of the emaa with Morocco. 422 Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with Draft Decision No … /​… of the Association Council set up by the Euro-​Mediterranean Agreement

98 

Chapter 2

for that purpose but the Association Councils have not yet endorsed them. The content of those Draft Decisions is identical. They are also identical to the Draft Decision in the context of the emaa with Israel. The persons covered by the Drafts Decisions are workers who are either Tunisian, Moroccan or Algerian nationals or who are nationals of an EU Member States, and who are or have been subject to the legislation of one of the Contracting States, as well as their family members.423, 424 There is a provision on equal treatment in all Drafts Decisions.425 There is also a provision on waiving of residence clauses in all Drafts Decisions.426 This waiving of residence clauses entails that exportable benefits, i.e. old-​age, survivors’, accident at work and occupational disease, and invalidity benefits, should not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact

423

4 24 425 426

establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​ Mediterranean Agreement, [2010] OJ L 306/​1; Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​Mediterranean Agreement, [2010] OJ L 306/​8; Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​Mediterranean Agreement, [2010] OJ L 306/​14. Family members are defined in Article 1(f) of the Draft Decision as meaning, for the purposes of the legislation of a Member State, a member of the family within the meaning of Article 1(i) of the Regulation; or for the purposes of the legislation of Israel, a member of the family meaning of that legislation. Article 2 of the Draft Decisions. Article 3 of the Draft Decisions. Article 4 of the Draft Decisions.

The EU legal framework on social security coordination

99

that the beneficiary is residing in the territory of the other Contracting Party. The remaining provisions of the Draft Decisions concern administrative cooperation between Tunisia, Algeria, and Morocco respectively with the EU Member States.427 As for the Draft Decision in the context of the emaa with Israel, the only element that is missing in those Draft Decisions from the emaa s with Tunisia, Algeria and Morocco is the principle of aggregation of periods of insurance. As to the reasons why the Association Councils have not yet adopted those Draft Decisions, the situation is not the same for all countries. For Morocco, it seems that negotiations about the Draft Decision and its Annexes have been successful and that a text should be adopted in the next Association Council meeting.428 For Algeria and Tunisia, negotiations are still ongoing. The technical character of the negotiations is pointed out as the main reason for the lack of progress.429 However, one might think about another element that could explain the lack of progress. Tunisia and Algeria have already more favourable bilateral agreements with Member States where there are strong legal migration patterns. The existing more favourable  bilateral agreements would then be granted precedence over any decision of the Association Councils.430 Therefore, one might wonder whether there is a real interest from those countries in having an additional agreement. Despite the lack of implementation of the emaa s’s provisions, some of the provisions have been granted direct effect by the Court of Justice. The most important judgment of the Court of Justice in that respect is probably the one in Kziber.431 Despite the fact that the Kziber judgment was about the Cooperation Agreement with Morocco, the Court held in Echouikh that the same reasoning applies to the emaa.432 In the Kziber judgment, the Belgian Office National de l’Emploi (onem) refused to grant unemployment allowances to Ms Kziber, a Morrocan national, on the grounds of her nationality. The Court of Justice was essentially asked whether Article 41 (1) of the Cooperation Agreement with Morocco (currently Article 65(1) of the emaa with Morocco) prohibiting discrimination on the basis of nationality could be relied upon directly by Ms Kziber despite the

4 27 428 429 430 4 31 432

Articles 5–​10 of the Draft Decisions. Interview with a Council’s official. Interview with a Council’s official. Article 71 of the emaa with Algeria; Article 68 of the emaa with Morocco; and Article 68 of the emaa withTunisia. Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36. Case C-​336/​05 Echouikh, ECLI:EU:C:2006:394.

100 

Chapter 2

fact that the Association Council had not taken any measure to implement that provision. The Court referred to its own judgment in Demirel433 and reaffirmed that ‘a provision of an agreement concluded by the Community with non-​member countries must be regarded as being directly applicable when, regard being had to its wording and to the purpose and nature of the agreement itself, the provision contains a clear and precise obligation which is not subject, in its implementation or effects, to the adoption of any subsequent measure.’.434 The Court held that Article 41(1) of the Cooperation Agreement with Morocco was clear, precise and unconditional despite the fact that there was no implementation yet by the Association Council. According to the Court, the role of the Association Council pursuant to Article 42(1) of the Agreement is to facilitate compliance with the principle of non-​ discrimination and to adopt implementing measures with regard to Article 41(2) on the aggregation principle, but this should not be read as rendering the application of the principle of non-​discrimination conditional upon implementing measures of the Association Council.435 The case of Kziber on the direct effect of the equal treatment provision has been since then confirmed in the Yousfi case concerning the refusal to grant disability allowances.436 The Court also applied the ruling of K ­ ziber in Echouikh where the question of direct effect of the equal treatment was asked in relation to the new emaa with Morocco.437 In Krid, the Court held the same reasoning in relation to the Cooperation Agreement with Algeria.438 Similarly, the Court held in Gattoussi that the provision on non-​discrimination in the emaa with Tunisia produced direct effect.439 It is one thing for the provisions of the emaa s to produce direct effect, it is another thing for terms such as ‘social security’, ‘worker’, ‘family member’ found in EU law to be given the same meaning in the context of Association Agreements. In that regard, the Court held in Kziber that the concept of social

4 33 434 435 436 437 438 439

Case C-​12/​86 Demirel, ECLI:EU:C:1987:400. Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36, para. 15. Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36, para. 19. Case C-​58/​93 Yousfi v Belgian State, ECLI:EU:C:1994:160, para.18; Later confirmed in Case C-​126/​95 Hallouzi-​Choho v Bestuur van de Sociale Verzekeringsbank, ECLI:EU:C:1996:368, paras. 19–​20. Case C-​336/​05 Echouikh, ECLI:EU:C:2006:394, paras.39–​40; Later confirmed in Case C-​276/​06 El Youssfi, ECLI:EU:C:2007:215. Case C-​103/​94 Krid v Caisse nationale d’assurance vieillesse des travailleurs salariés, ECLI:EU:C:1995:97, paras.21–​24. Case C-​97/​05 Gattoussi, ECLI:EU:C:2006:243.

The EU legal framework on social security coordination

101

security used in the Cooperation Agreement had the same meaning as the concept under Regulation 1408/​71.440 This finding has been since then confirmed in numerous judgments such as Alami441 concerning the Cooperation Agreement with Morroco and Babahenini442 on the Cooperation Agreement with Algeria. Unlike the concept of ‘social security’, the concept of ‘worker’ has been given an autonomous meaning by the Court. In Kziber again, the Court held that the concept of ‘worker’ encompasses ‘both active workers and those who have left the labour market after reaching the age required for receipt of an old-​age pension or after becoming victims of the materialisation of one of the risks creating entitlement to allowances falling under other branches of social security.’.443 The concept of ‘family member’ has been defined later in Mesbah. This case concerned the refusal by the Belgian authorities to grant Ms Mesbah disability allowances. Ms Mesbah was a Moroccan national living in Belgium in the household of her daughter and son-​in-​law, both of them dual nationals (Moroccan and Belgian). Ms Mesbah, who had never been a worker herself, wanted to rely on the equal treatment provision of the Cooperation Agreement with Morocco on the ground that she was a family member of a Moroccan national working in Belgium, her son-​in-​law. The Belgian court asked whether the term ‘family members’ also applies to persons only related by marriage. The Court held that Article 41(1) of the Cooperation Agreement with Morocco does not define ‘family members’ and is capable of covering other relatives, including relatives in the ascending line linked by marriage and not necessarily by blood.444 To summarise, the Court of Justice has played an important role in finding the provision on equal treatment of the different Cooperation Agreements and later the emaa s to have direct effect with regard to a very wide range of benefits; to name only a few: unemployment benefits for young workers (Kziber),445 unemployment benefits in the sense of seniority ­supplement (Alami),446 disability allowances (Yousfi, Mesbah, Babahenini),447 transitional benefits for the

4 40 441 442 443 444 445 446 447

Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36, para. 25. Case C-​23/​02 Alami, ECLI:EU:C:2003:89, para.23. Case C-​113/​97 Babahenini v Belgian State, ECLI:EU:C:1998:13, paras. 26 and 27. Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36, para. 27. Case C-​179/​98 Belgian State v Mesbah, ECLI:EU:C:1999:549, paras. 43–​46. Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36. Case C-​23/​02 Alami, ECLI:EU:C:2003:89. Case C/​-​58/​93 Yousfi v Belgian State, ECLI:EU:C:1994:160; Case C-​ 179/​ 98 Belgian State v Mesbah, ECLI:EU:C:1999:549; Case C-​ 113/​ 97 Babahenini v Belgian State, ECLI:EU:C:1998:13.

102 

Chapter 2

Dutch general old-​age insurance scheme (Hallouzi-​­Choho),448 supplementary allowances next to the survivor’s pension (Krid).449, 450 2.1.5

The Stabilisation Association Agreements with Balkan Countries (the Former Yugoslav Republic of Macedonia, Albania, Montenegro, Serbia, Bosnia and Herzegovina, and Kosovo) 2.1.5.1 Purpose of the Stabilisation Association Agreements The Stabilisation Association Agreements (saa s) were concluded between the EU and Balkan countries in the prospect of preparing future accession to the EU. For the moment, there are saa s with the former Yugoslav Republic of Macedonia (2001),451 Albania (2006),452 Montenegro (2007),453 Serbia (2008),454 Bosnia and Herzegovina (2015),455 and Kosovo (2015).456

448 449 450

451 452 453 454 455 456

Case C-​126/​95 Hallouzi-​ Choho v Bestuur van de Sociale Verzekeringsbank, ECLI:EU:C:1996:368. Case C-​103/​94 Krid v Caisse nationale d’assurance vieillesse des travailleurs salariés, ECLI:EU:C:1995:97. For a more detailed discussion on those cases see A. Wiesbrock, ‘Social Security Rights of Third-​Country Nationals Under the Euro-​Mediterranean Association Agreements’, in E.  Guild, S.  Carrera & K.  Eisele (Eds.), Social Benefits and Migration:  a Contested Relationship and Policy Challenge in the EU (ceps 2013) 49–​61; H. Verschueren, ‘ Social Security Co-​Ordination in the Agreements Between the EU and Mediterranean Countries’, in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​Ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 19–​56; M. Maresceau, ‘The Court of Justice and Bilateral Agreements’, in A. Rosas, E. Levits, Y. Bot (Eds.), The Court of Justice and the Construction of Europe: Analyses and Perspecives on Sixty Years of Case law (t.m.c Asser Press 2013) 693–​717. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, [2004] OJ L84/​13. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, [2009] OJ L107/​166. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, Brussels, [2010] OJ L 108/​3. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, [2013] OJ L 278/​14. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, [2015] OJ L 164/​2. Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Kosovo, of the other part, [2016] OJ L 71/​3.

The EU legal framework on social security coordination

103

2.1.5.2

The Social Security Coordination Rules under the Stabilisation Association Agreements All the saa s contain a provision concerned with social security coordination, except for the one with Kosovo which does not contain any reference to ‘social security’.457 The provisions on social security coordination in all saa s are worded identically. They do not provide for specific rules on social security coordination. Instead, they only provide that the rules coordinating social security systems for workers of the nationality of one of the Western Balkan countries should be laid down by a decision of the Stabilisation and Association Council. The provisions on social security coordination add that the decision of the Stabilisation and Association Council should comprise measures on (1) aggregation of periods of insurance, employment or residence for the purpose of pensions and annuities in respect of old age, invalidity and death and for the purpose of medical care for the workers and their family members; (2)  exportability of pensions or annuities in respect of old age, death, industrial accident or occupational disease, or of invalidity resulting therefrom, with the exception of non-​contributory benefits; (3) and access to family allowances for the members of the worker’s family.458 It should be noted that equal treatment with regard to social security is expressly left out from the saa s. Furthermore, the provisions on social security coordination contained in the saa s do not produce direct effect. Concerning the implementation of the saa s, there are three Draft Decisions by the Council of the EU in the context of the saa s with the Former Yugoslav Republic of Macedonia (fyrom), with Albania, with Montenegro.459 457 In fact, the only mention in the saa with Kosovo to ‘workers’ concerns public procurement. It is simply stated in Article 79(9) of the saa that workers from Kosovo linked to the fulfilment of public contracts are to be treated as any third-​country workers in the European Union. 458 Article 51 of the saa between the European Union and the Republic of Serbia; Article 46 of the saa between the European Union and the former Yugoslav Republic of Macedonia; Article 51 of the saa between the European Union and the Republic of Montenegro; Article 48 of the saa between the European Union and the Republic of Albania; Article 49 of the saa between the European Union and Bosnia and Herzegovina. 459 Council Decision of 21 October 2010 on the position to be taken by the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with Draft Decision No … /​… of the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and

104 

Chapter 2

In terms of content, the three Draft Decisions are worded identically to the Draft Decisions with Morocco, Algeria, Tunisia and Israel. They all cover workers of the Contracting States who are or have been subject to the legislation of one or more Contracting States as well as their family members.460 They also provide for an equal treatment provision and for a rule on waiving residence clauses.461 The Draft Decisions further provide for rules on cooperation between the authorities of the different parties to the saa, as well as rules on administrative checks and medical examinations.462 Any other rule of social security coordination such as a rule on aggregation of periods of insurance or a rule on determining the law applicable are missing from the Drafts Decisions.463 Like the Drafts Decisions with Israel, Algeria and Morocco, these Draft Decisions with fyrom, Montenegro and Albania have not yet been adopted by the Stabilisation and Association Councils. The reasons for the lack of adoption of the Drafts Decisions by the Stabilisation and Association Councils have not been explained officially. It seems that the main issue with regard to the negotiation of the Draft Decision with fyrom was the dispute with regard to the name of that country.464 That being said, it seems that the

4 60 461 462 463 464

their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Stabilisation and Association Agreement, [2010] OJ L 306/​ 28; Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Albania Stabilisation and Association Council of … with regard to the adoption of provisions on the coordination of social security systems, [2012] OJ L 340/​1; Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Stabilisation and Association Council set up by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with Draft Decision No … /​… of the EU-​Montenegro Stabilisation and Association Council of … with regard to the adoption of provisions on the coordination of social security systems, [2012] L 340/​7. Article 2 of the Draft Decisions. Article 3 and 4 of the Draft Decisions. Articles 5–​10 of the Draft Decisions. H. Verschueren, ‘Employment and Social Security Rights of Third-​Country Labour Migrants under EU Law:  An Incomplete Patchwork of Legal Protection’ 18 European Journal of Migration and Law (2016) 401–​402. Interview with an European Commission’s official. This issue of name is now less sensitive since the agreement between Greece and, now, the Republic of North Macedonia.

The EU legal framework on social security coordination

105

negotiations with fyrom have been finalised and that the Draft Decision and its Annexes could soon be adopted.465 The same is true concerning Montenegro.466 Overall, it is more likely that fyrom, Montenegro and Albania have interests in adopting the Drafts Decisions in the prospect of their accession to the EU. 2.1.6

The Agreement on Cooperation and Customs Union with San Marino 2.1.6.1 Purpose of the Agreement with San Marino Since 1991, the EU and San Marino have an Agreement on Cooperation and Customs Union.467 Currently, the EU and San Marino are negotiating an Association Agreement.468 The current Agreement on Cooperation and Customs includes a provision concerned with the social security of San Marino workers and their family members in the EU, as well as EU workers in San Marino. 2.1.6.2

The Social Security Coordination Rules under the Agreement with San Marino The Agreement with San Marino provides that workers of San Marino nationality and their family members living with them should enjoy equal treatment in the field of social security in relation to nationals of Member States in which they are employed.469 The Agreement further provides that all periods of insurance, residence or employment should be aggregated for the purpose of pensions and annuities in respect of old age, death and invalidity, and also for the purpose of medical care for the workers and for members of their families residing in the EU.470 San Marino workers should receive family allowances for their family members residing in the EU.471

4 65 Interview with a Council’s official. 466 Interview with a Council’s official. 467 Agreement on Cooperation and Customs Union between the European Economic Community and the Republic of San Marino, [2002] OJ L84/​43. 468 Council of the EU, Press Release ST 16972/​14, ‘Council adopts mandate to negotiate association agreement(s) with Andorra, Monaco and San Marino’. 469 Article 21(1) of the Agreement with San Marino. 470 Article 21 (2) of the Agreement with San Marino. 471 Article 21 (3) of the Agreement with San Marino.

106 

Chapter 2

Finally, there should be the possibility for the San Marino workers to transfer any pensions or annuities in respect of disability, old age, death, industrial accident or occupational disease.472 It is interesting to note that the Republic of San Marino should grant the same treatment for EU citizens working in San Marino except ­concerning the aggregation of periods of insurance, employment or residence.473 Hence, the Agreement with San Marino is not completely based on reciprocity. The Cooperation Agreement with San Marino contains principles of social security coordination that would need to be further implemented by the Cooperation Committee. In 2012, the Council of the EU adopted a position to be taken on behalf of the EU in the EU-​San Marino Cooperation Committee with regard to the adoption of provisions on the coordination of social security systems.474 The EU-​San Marino Cooperation Committee has however not yet adopted a decision on that issue. One of the reasons for the lack of decision could be that the EU and San Marino are currently negotiating an Association Agreement which aims at integrating the internal market rules, including the EU social security coordination rules.475 It should be noted that the same type of Association Agreement is also currently negotiated with Monaco and ­Andorra.476

4 72 Article 21 (4) of the Agreement with San Marino. 473 Article 21 (5) of the Agreement with San Marino. 474 Council Decision of 6 December 2012 on the position to be taken by the European Union within the Cooperation Committee set up by the Agreement on Cooperation and Customs Union between the European Community and its Member States, of the one part, and the Republic of San Marino, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​San Marino Cooperation Committee of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L340/​13. 475 European Commission, ‘EU Relations with the Principality of Andorra, the Principality of Monaco and the Republic of San Marino: Options for their participation in the Internal Market’ (Report) COM (2013) 793 final; European Commission, ‘Obstacles to access by Andorra, Monaco and San Marino to the EU’s Internal Market and Cooperation in other Areas Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on EU Relations with the Principality of Andorra, the Principality of Monaco and the Republic of San Marino for Options for Closer Integration with the EU’ (Commission Staff Working Paper) swd (2012) 388 final. 476 Council of the EU, Press Release ST 16972/​14, ‘Council adopts mandate to negotiate association agreement(s) with Andorra, Monaco and San Marino’.

The EU legal framework on social security coordination

107

2.1.7

The Partnership and Cooperation Agreements (pca s) with Moldova and Ukraine 2.1.7.1 Purpose of the pca s with Moldova and Ukraine In 1994, the EU signed pca s with Moldova477 and Ukraine.478 Both Ukraine and the Republic of Moldova are partner countries to the European Neighbourhood Policy (enp)479 and the Eastern Partnership.480 It should be noted that the agreements between the EU and other countries part of the Eastern Partnership (Armenia, Azerbaijan, Belarus, Georgia) do not make reference to the coordination of social security. This is the reason why those agreements are not covered by this research. Since 2014, the pca s with Moldova and Ukraine have been replaced by Association Agreements as the legal basis for the framework of future relations between the EU and these two countries.481 In the Association Agreements,482 Moldova and Ukraine promised to approximate much of their legislation with the EU acquis. There is however no mention anymore of social security coordination in the new Association Agreements. 2.1.7.2

The Social Security Coordination Rules under the pca s with Moldova and Ukraine The old pca s contained references to the coordination of social security between the Contracting Parties.483 The provisions contained in those pca s did not include specific social security coordination rules but rather provided that the Contracting Parties should

477 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Moldova, of the other part, [1998] OJ L181/​3. 478 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part, [1998] OJ L 333/​3. 479 European Commission, ‘Wider Europe-​Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (Communication) COM (2003) 104 final. 480 Joint Declaration of the Prague Eastern Partnership Summit, Prague, 7 May 2009. Available at http://​www.consilium.europa.eu/​media/​31797/​2009_​eap_​declaration.pdf, last accessed on 31 May 2019. 481 European External Action Service website. Available at http://​eeas.europa.eu/​top_​ stories/​2012/​140912_​ukraine_​en.htmm last accessed on 31 May 2019. 482 Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, [2014] OJ L 161/​3; Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, [2014] OJ L 260/​1. 483 In Articles 24–​25 of the Partnership and Cooperation Agreement with Moldova and Articles 25–​26 of the Partnership and Cooperation Agreement with Ukraine.

108 

Chapter 2

conclude future agreements concerning the coordination of the social security. Future agreements were to contain provisions on aggregation of periods of insurance, residence or employment for the purpose of pensions in respect of old age, invalidity and death and for the purpose of medical care of the workers. They should have also mentioned the transfer of old-​age, death, industrial accident or occupational disease, or of invalidity resulting therefrom, with the exception of non-​special contributory benefits. However, the Contracting Parties to the pca s never adopted agreements on social security coordination. Consequently, Ukrainian and Moldovan workers do not enjoy the social security rights promised in the pca s. In addition, since the new Association Agreements with these two countries do not contain references to social security coordination, there is little perspective of having any agreement on social security coordination between the EU and those third countries. 2.1.8 The Partnership and Cooperation Agreement (pca) with Russia 2.1.8.1 Purpose of the pca with Russia The pca between the EU and Russia was signed in 1994 and entered into force in 1997.484 The purpose of this pca is the establishment of a political dialogue on many issues such as human rights, trade, international peace and security, but also political and economic freedoms. The main focus of the EU-​Russia relations is trade, not labour migration.485 On the subject of migration, the relation between the two parties deals essentially with the fight against irregular migration. The discussions on legal migration are rare and the coordination of social security is certainly not a priority.486 In that context,487 it is not surprising that the pca with Russia contains little reference to social security coordination. 484 Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russia Federation, of the other part, [1997] OJ L 327/​3. 485 See for example the Road Map established between the EU and Russia in 2003: European Commission, ‘15th EU Summit:  Road Map For the Common Economic Space-​Building Blocks For Sustained Economic Growth’, Rome Summit, November 2003. Available at https://​ ec.europa.eu/​research/​iscp/​pdf/​policy/​russia_​eu_​four_​common_​spaces-​%20roadmap_​ en.pdf, last accessed on 31 May 2019. 486 The focus is on visa facilitation and readmission. See European Commission, ‘15th EU Summit:  Road Map For the Common Economic Space-​Building Blocks For Sustained Economic Growth’, Rome Summit, November 2003, 23. 487 Since 2007, Russia and EU have signed a Partnership for Modernisation. This Partnership for Modernisation does not make any reference to the movement of workers, nor to social security. See Council of the EU, Press Release PRES10546/​10, ‘Joint Statement on the Partnership for Modernisation’.

The EU legal framework on social security coordination

109

2.1.8.2 The Social Security Coordination Rules under the pca with Russia Article 24 of the pca includes commitments to conclude further agreements on social security coordination which should include aggregation of periods of insurance, residence and employment, transfer of some benefits,488 and entitlement to family allowances for family members of workers residing in the host country. The concept of ‘family member’ for the purpose of Article 24 of the pca is further defined in a Joint Declaration which essentially refers back to the national legislation of the country where the family allowances will be granted. The promises made under Article 24 to conclude further social security coordination instruments never materialised. Therefore, Russian workers do not enjoy the rights listed in Article 24 of the pca. The only option for them is to rely on bilateral agreements concluded between the EU Member States and Russia.489 2.1.9 Some Preliminary Conclusions on the EU Agreements Based on the discussion of the EU agreements, several considerations can be useful for the future of a common EU approach to social security coordination. Firstly, the type of relationship between the EU and the third country is a determinant of the content of the social security coordination provision. On the basis of the comparison between the different EU agreements discussed in this research, the EU agreements could be classified into three categories of agreements representing three types of relationship with the third country and corresponding to three types of social security coordination provision. The EU agreements of ‘category 1’ are the eea Agreement and the EU-​Swiss ­Agreement. Those EU agreements are, what was called by M.  Maresceau, ‘integration-​oriented agreements’.490 This means that those EU agreements aim at integrating EU rules without having the purpose of EU membership 488 The benefits to be transferred are old-​age, death, industrial accident or occupational disease, or of invalidity resulting therefrom, with the exception of non-​special contributory benefits. 489 It should be noted that Article 25 of the Partnership and Cooperation Agreement provides that future agreement between the EU and Russia on social security coordination should not prejudice the existing bilateral agreements between the Member States and Russia being more favourable for the workers. 490 M. Maresceau, ‘Les accords d’intégration dans les relations de proximité de l’Union européenne’, in C. Blumann (Ed.), Les frontières de l’Union européenne, Bruylant, 2013, 151–​192; A. Lazowski calls it ‘integration without membership’. A. Lazowski, ‘Enhanced Multilateralism and Enhanced Bilateralism:  Integration without Membership in the European Union’, 45(2) Common Market Law Review (2008), 1433–​1458.

110 

Chapter 2

in mind. In terms of content, those EU agreements of ‘category 1’ contain provisions of EU law that have to be applied in the third countries as if the third countries were members of the EU. For the purpose of social security coordination, the rules of Regulation 883/​2004 and its implementing Regulation 987/​2009 have been extended to both the eea efta States and the Swiss Confederation. In addition, the Court of Justice has found that both the eea efta States and for the Swiss Confederation have to be considered as Member States of the EU in the context of the application of the EU rules on social security coordination.491 On the opposite side of the spectrum in terms of social security coordination, EU agreements of ‘category 3’ are EU agreements that only call for future measures to be concluded on social security coordination. Those EU agreements are with Egypt, Lebanon, Jordan, Israel, San Marino, the Former Yugoslav Republic of Macedonia, Albania, Montenegro, Serbia, Bosnia and Herzegovina, Russia, Moldova and Ukraine. Those EU agreements do not provide for precise provisions on social security coordination but rather encouragements to develop dialogue on social matters including the improvement of social security regimes and movement of workers. The emaa with Israel, the saa s with the Balkan countries,492 as well as the pca s with Russia, Moldova and Ukraine offer further guidance in the sense that they provide what type of social security coordination element, e.g. aggregation of periods of insurance, should be contained in future measures on social security coordination. Somewhere in the middle between the EU agreements of ‘category 1’ and ‘category 3’, the EU agreements of ‘category 2’ are agreements providing for some provisions of social security coordination that are sufficiently precise and unconditional to be directly effective. Those EU agreements are the agreements with Turkey, Morocco, Tunisia and Algeria. Similar to the social security coordination provisions of the EU agreements of ‘category 3’, the social security coordination provisions contained in the EU agreements of ‘category 2’ also need further implementation by the Association Councils. However, due to their wording, some of the provisions of the EU agreements of ‘category 2’ were considered by the Court of Justice as being sufficiently precise and unconditional to have direct effect. Finally, it should be noted that as the relationship evolve, the type of social security coordination might also evolve. For example, there are currently negotiations on an Association Agreement between the EU 491

Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589; Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698; Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97. 492 The Former Yugoslav Republic of Macedonia, Albania, Montenegro, Serbia, Bosnia and Herzegovina and Kosovo. The saa with Kosovo does not contain any reference to social security however.

The EU legal framework on social security coordination

111

and San Marino. The purpose of this Association Agreement is the integration of the internal market rules. In that context, it is possible that the EU rules on social security coordination could be extended to San Marino as it was extended to eea efta States and to Switzerland. Secondly, there is a political change in relation to the inclusion of social security coordination provisions in EU agreements. As explained, the EU agreements of ‘category 2’ contain provisions that were considered by the Court of Justice as being sufficiently precise and unconditional as to be granted direct effect.493 After the judgments from the Court, the Council has been reluctant to include clear, precise and unconditional social security coordination provisions in EU agreements.494 Therefore, for the future of a common EU approach, it can be predicted that the inclusion of social security coordination provisions in EU agreements would result in provisions being vague and needing further implementation by Association Councils. 2.2 The EU Migration Directives: Unilateral EU Measures 2.2.1 A Sectoral Approach to EU Migration Directives Immigration is a relatively new area of competence for the European Union. Third-​ country nationals were first mentioned in Article 100 c of the EC Treaty in the context of visas. The competence to adopt immigration legislation was then introduced in 1999 by the Treaty of Amsterdam.495 After the acquisition of competence, the European Council called in its Tampere Program for a common EU policy on asylum and migration.496 Two years after the Tampere Program, the European Commission proposed a directive on conditions of entry and residence of third-​ country nationals for the purpose of paid employment and self-​employed economic activities.497 This idea of having one instrument covering all third-​country 4 93 For example, in Case C-​262/​96 Sürül, ECLI:EU:C:1999:228. 494 R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 361. 495 The competence can now be found under Article 79 tfeu. Protocol No 21 and Protocol No 22 apply in case of use of Article 79 tfeu. This means that Denmark automatically does not participate in any legislative measures based on Article 79 tfeu. Furthermore, the UK and Ireland have the possibility to opt-​in for legislative measures based on Article 79 tfeu. As a result, concerning the Directives analysed below, Denmark is not participating in those legislative measures. Furthermore, the UK and Ireland choose not to participate in them. It is interesting to note that Ireland was participating in the previous versions of the Student Directive and the Researcher Directive but decided to refrain from participating in the re-​cast Student and Research Directive. 496 European Council, ‘Presidency Conclusions’, Tampere Summit, October 1999. 497 Proposal for a Council Directive on the conditions of entry and residence for the purpose of paid employment and self-​employment activities, [2001] COM (2001) 0386 final.

112 

Chapter 2

nationals who want to enter and reside in the EU was never agreed by the Member States498 and was withdrawn in 2006 by the European Commission.499 In 2005, while there was no text on legal migration adopted, a Policy Plan on legal migration stressed the future problem of labour and skills shortages in the EU calling thereby for labour migration as the solution to fill those shortages.500 Realising the lack of support by the Member States for a single instrument on labour migration, the Policy Plan favoured a sectoral approach on conditions and procedures of admission for third-​country nationals. The sectoral approach focused on certain categories of third-​country nationals that were deemed desirable to fill the labour shortages faced by the Member States. Overall, the Communication on Circular Migration (2007),501 the European Pact on Immigration and Asylum (2008),502 and the Stockholm Programme (2009)503 all advertised for the achievement of a sectoral approach. Those policy plans have resulted in a package of four directives: the Blue Card Directive,504 the Single Permit Directive,505 the Seasonal Workers Directive506 and the Intra-​Corporate Transfer Directive.507 Next to this package on labour migration, the EU has also adopted other instruments on legal migration that are not labour migration instruments per se.

4 98 The legal basis of the proposal required the unanimity voting in the Council. 499 European Commission, ‘Withdrawal of Commission proposals following screening for their general relevance, their impact on competitiveness and other aspects’, [2006] OJ C 64/​3. 500 European Commission, ‘Policy plan on legal migration’ (Communication) COM (2005) 669 final. 501 European Commission, ‘On circular migration and mobility partnerships between the European Union and third countries’ (Communication) COM (2007) 248 final. 502 Council of the EU, ‘European pact on immigration and asylum’, INI 13440/​08. 503 Council of the EU, ‘The Stockholm Programme –​An open and secure Europe serving and protecting the citizen’, INI 5731/​10. 504 Council Directive 2009/​50/​EC of 25 May 2009 on the conditions of entry and residence of third-​country nationals for the purpose of highly qualified employment, [2009] OJ L 155/​17. 505 Directive 2011/​98/​EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and a common set of rights for third-​ country workers legally residing in a Member State, [2011] OJ L 343/​1. 506 Directive 2014/​36/​EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and residence of third-​country nationals for the purpose of employment as seasonal workers, [2014] OJ L94/​375. 507 Directive 2014/​66/​EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-​country nationals in the framework of an intra-​corporate transfer, [2014] OJ L157/​1.

The EU legal framework on social security coordination

113

These instruments are the Long-​Term Directive,508 the Students and Researchers Directives,509 and the Family Reunification Directive.510 For the purpose of this research, only the legal migration Directives511 that include a provision on social security are analysed. Understanding that the EU migration Directives have been adopted following a sectoral approach is an important element that explains the lack of coherency among the provisions found in the Directives.512 2.2.2

Equal Treatment Provisions in the EU Migration Directives: the Only Reference to Social Security The EU migration Directives analysed in this research share the characteristic that the only reference to social security is found in their equal treatment provisions.513 The similarity between the Directives stops here. The main differences between the equal treatment provisions of the Directives are (1) the possibilities for limiting the equal treatment to certain branches of social security and (2) equal treatment being required in the context of export of benefits. Based on those differences, it is possible to establish a certain ranking of the different equal treatment provisions from the Directive that gives the most extensive equal treatment to the one that gives the least. This ranking is however very theoretical as the coverage of the equal treatment will depend upon the implementation of the Member States who might use to the fullest extent possible the limitations allowed by the Directives.

508 Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents, [2004] OJ L 16/​44. 509 Directive 2016/​801/​EU of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or education projects and au pairing, [2016] OJ L 132/​21. 510 Council Directive 2003/​86/​EC of 22 September 2003 on the right to family reunification, [2003] OJ L 251/​12. 511 Irregular migration is excluded from the scope of this research. For reasons for this exclusion, please the Introduction Chapter, pp.18–​19. 512 H. Verschueren is also of the opinion that the lack of common standards in the different Directives is the result of the sectoral approach. H. Verschueren, ‘Employment and Social Security Rights of Third-​Country Labour Migrants under EU Law: An Incomplete Patchwork of Legal Protection’ 18 European Journal of Migration and Law (2016) 393. 513 A useful tool for the comparison of the equal treatment provisions of the migration Directives is the report by Y.  Jorens and J.  De Coninck for the European Commission from 2015. Y. Jorens & J. De Coninck, ‘Reply to an ad hoc request for comparative analysis:  Equal treatment obligations under EU instruments for third-​country nationals’ (FreSsco, July 2015) 6–​34.

Benefits that can be limited (L) or excluded (E)

Benefits in principle covered

L L L L L L L

Maternity Invalidity Old-​age Survivors Work injuries Death grants Unemployment

x

Single permit directive

L

Long-​term residence directive

All benefits defined by Art. 3 of Reg.883/​ 2004a, b Social security, social x assistance and social protection as defined by national law Sickness

Equal treatment provision

table 1

L L L L L L L

L

x

Blue card directive

x

Students and researchers directive

E

x

Seasonal workers directive x

Intra-​ Corporate transfer directive

114  Chapter 2

x x x

L E

x

L L

x x x

E

x x x

E

x x x

E

a  Sickness, Maternity and equivalent paternity benefits, invalidity, old-​age, survivors, accident at work and occupational diseases, death grants, unemployment, pre-​retirement, and family benefits. b  Or by Regulation 1408/​71.

Equal treatment in export of benefits

Pre-​retirement Family Social assistance and x social protection Sickness Maternity Invalidity Old-​age Survivors Work Injuries Death grants Unemployment Pre-​retirement Family

newgenrtpdf

The EU legal framework on social security coordination115

116 

Chapter 2

2.2.3 Directive 2009/​50/​EC (The Blue Card Directive) 2.2.3.1 Purpose of the Blue Card Directive Adopted in 2009, the Blue Card Directive was the first legal instrument adopted by the EU that really concerned the admission of third-​country nationals to the EU. The Long-​Term Residence Directive was adopted already 6 years earlier but it concerned the residence and not the admission of third-​country nationals. The reason for the late adoption of a legislative instrument on admission of third-​country nationals can partly be explained by the EU’s limited competence514 in the field of admission of third-​country nationals and in labour migration. Prior to the adoption of the Blue Card Directive, national schemes existed with the purpose of attracting highly-​skilled third-​country workers.515 The purpose of the Blue Card Directive is to create a broader EU scheme attracting highly-​skilled third-​country workers to the EU.516 Since its adoption, the Blue Card Directive has been subject to many criticisms.517 Due to the co-​ existence of national schemes in some Member States, those Member States did not promote the admission on the basis of the Blue Card Directive but continued to use their old national schemes.518 In order to address the critics and tackle the issue of co-​existing national schemes, the Blue Card Directive is under revision. It is important to note that the provision on equal treatment concerning social security rights of Blue Card holders is unchanged in the European Commission proposal for the revision of the Blue Card Directive.519

514 Article 79(5) tfeu provides that the numbers of admission of third-​country nationals for the purpose of work is a competence of the Member States. 515 European Commission, Press Release IP/​07/​1575, ‘Making Europe More Attractive to Highly Skilled Migrants and Increasing the Protection of Lawfully Residing and Working Migrants’, 1. 516 Proposal for a Council Directive on the Conditions for Entry and Residence of Third-​ Country Nationals for the Purposes of Highly Qualified Employment:  Summary of Impact Assessment, [2007] sec (2007) 1382 final, 4.; S. Peers, ‘Chapter 3: The ‘Blue Card’ Directive’, in S. Peers, E. Guild, D. Acosta, K. Groenendijk and V. Moreno-​Lax (Eds), EU Immigration and Asylum Law (Text and Commentary):  Second Revised Edition, Volume 2: EU Immigration Law (Martinus Nijhoff Publishers 2012) 47. 517 See for example:  Y. Kerem Gümüs, ‘EU Blue Card Scheme:  the Right Step in the Right Direction?’ 12 European Journal of Migration and Law (2010) 435–​453; E. Collett, ‘Blue Card and the ‘global battle for talent’’ (epc Commentary 2009) 1. 518 See, for example, European Commission, Press Release IP/​16/​2041, ‘Delivering the European Agenda on Migration:  Commission presents Action Plan on Integration and reforms ‘Blue Card’ scheme for highly skilled workers from outside the EU’. 519 Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of highly skilled employment, [2016] COM (2016) 378 final.

The EU legal framework on social security coordination

117

The core provisions of the Blue Card Directive concern the admission criteria,520 the procedure to be followed in order to be granted an EU Blue Card,521 and the rights that go alongside the acquisition of a Blue Card.522 According to its Article 3(1), the Blue Card Directive ‘shall apply to third-​ country nationals who apply for admission to the territory of a Member State for the purpose of highly qualified employment under the terms of this Directive’. However, Article 3(2) excludes many categories of third-​ country nationals from the scope of the Blue Card Directive; namely third-​ country nationals who are EU Long-​Term Residents and are moving across the Member States for employment purposes; seasonal workers; posted workers; researchers falling within the scope of the Researchers Directive; as well as third-​country nationals family members of EU citizens who have exercised their free movement rights523; third-​country nationals seeking international protection and who await a decision; third-​country nationals who are beneficiaries of temporary protection; and third-​country nationals who are beneficiaries of international protection under the Qualification Directive.524, 525 2.2.3.2 Equal Treatment Provision of the Blue Card Directive Based on the comparative table above, the Blue Card Directive is theoretically the directive that gives the most extensive protection to the social security rights of Blue Card holders. Article 14 of the Blue Card Directive provides for equal treatment with nationals of the Member State issuing a Blue Card. Article 14(1)(e) and Recital 5 20 521 522 523

Articles 5–​6 of the Blue Card Directive. Articles 7–​11 of the Blue Card Directive. Articles 12–​17 of the Blue Card Directive. This element is currently included in the proposal for the revised Blue Card Directive. Those third-​country nationals should not be excluded anymore from the scope of the Directive according to the proposal. Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of highly skilled employment, [2016] COM (2016) 378 final, 13. 524 Council Directive 2004/​83/​EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, [2004] OJ L304/​12. 5 25 This last category is no longer present in the proposal for the revised Blue Card Directive in the list of categories of third-​country nationals excluded from the scope of the Directive. Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of highly skilled employment, [2016] COM (2016) 378 final, 14.

118 

Chapter 2

18 of the Preamble specify that Blue Card holders should enjoy equal treatment to social security. As for all the other Directives,526 social security is to be understood as comprising the benefits defined in Article 3 of Regulation 883/​ 2004.527 The provision on equal treatment does not contain many possibilities to exclude or limit benefits from its scope. The only possibility for limiting equal treatment with regard to social security rights is in a situation described by Article 14 (4) of the Blue Card Directive. Article 14(4) provides that Member States may limit equal treatment with regard to social security benefits when the Blue Card holder moves to a second Member State in accordance with Article 18 and a positive decision on the issuing of a Blue Card has not yet been taken.528 One of the advantages of the Blue Card Directive is that it provides for the export of old-​age statutory pensions when moving to a third country without the need to further conclude a bilateral agreement between the Member State and a third country.529 However, the extent of that possibility will depend on whether it exists for the Member States’ own nationals as this is a possibility arising from an equal treatment provision. It should be noted that the proposal for the revision of the Blue Card Directive mentions equal treatment for the export of old-​age, invalidity and survivors’ benefits.530 Finally, the Blue Card Directive provides for equal treatment with regard to social security even during periods of temporary unemployment when the Blue Card holder fulfils the requirements set out by national law to receive social security benefits.531 That being said, if the Blue Card holder does not have sufficient resources to support himself or asks for social assistance, the Member States might withdraw the Blue Card permit.532

526 Except the Long-​Term Residence Directive which leaves the definition of social security to national law. 527 Article 14(1) (e) of the Blue Card Directive. 528 Indeed, when moving to another Member State than the one who issued the Blue Card, the Blue Card holder needs to ask to that other Member State for a new Blue Card for his stay there (Article 18 of the Blue Card Directive). 529 Article 14(1) (f) of the Blue Card Directive. 530 Article 15(3) of the proposal for the revised Blue Card Directive. Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of highly skilled employment, [2016] COM (2016) 378 final. 531 Recital 18 of the Blue Card Directive. 532 Article 9 (3)(b) and (d) of the Blue Card Directive.

The EU legal framework on social security coordination

119

2.2.4 Directive 2014/​66/​EU (The Intra-​Corporate Transfer Directive) 2.2.4.1 Purpose of the Intra-​Corporate Transfer Directive Adopted in 2014, the Intra-​Corporate Transfer Directive sets the conditions of entry and residence of third-​country nationals in the context of intra-​ corporate transfers. According to the European Commission, this Directive applies to potentially 15 000 up to 20 000 third-​country nationals each year.533 For the purpose of the Directive, intra-​corporate transfers are defined as ‘the temporary secondment for occupational or training purposes of a third-​ country national who, at the time of application for an intra-​corporate transferee permit, resides outside the territory of the Member States, from an undertaking established outside the territory of a Member State, and to which the third-​country national is bound by a work contract prior to and during the transfer, to an entity belonging to the undertaking or to the same group of undertakings which is established in that Member State, and, where applicable, the mobility between host entities established in one or several second Member States’.534 Intra-​corporate transfers are in fact temporary migration that should last for a maximum of three years including the mobility within the Member States.535 The Intra-​Corporate Transfer Directive applies to third-​country nationals residing outside the EU who make an application for intra-​corporate transfer or those who have been admitted for that purpose under the terms of the Directive.536 The Directive does not apply to researchers who are admitted under the Researchers Directive, to posted workers falling under the scope of the Posted Workers Directive,537 to students, to third-​country nationals who are assigned by employment agencies, to third-​country nationals who are self-​ employed, and to third-​country nationals who enjoy free movement rights equivalent to Union citizens due to an agreement between their country and the European Union.538

533 Council of the EU, Press Release PRES6338/​14, ‘Council adopts intra-​corporate transferees directive’. 534 Article 3(b) of the Intra-​Corporate Transfer Directive. 535 Recital 17 of the Intra-​Corporate Transfer Directive. 536 Article 2(1) of the Intra-​Corporate Transfer Directive. 537 Directive 96/​71/​EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L 18/​1. 538 Article 2(2) of the Intra-​Corporate Transfer Directive.

120 

Chapter 2

2.2.4.2

Equal Treatment Provision of the Intra-​Corporate Transfer Directive Article 18(1) of the Intra-​Corporate Transfer Directive provides for equal treatment of intra-​corporate transferees with posted workers covered by the Posted Workers Directive, concerning the terms and conditions of employment. Article 18(2) further provides as a general rule that intra-​corporate transferees should enjoy equal treatment with nationals of the Member States where the work is carried out. Equal treatment concerns all the branches of social security listed in Article 3 of Regulation 883/​2004.539 The reason for putting the Intra-​Corporate Directive in the second position as the directive giving the most extensive protection to the social security rights of third-​country nationals is twofold. Firstly, family benefits are the only type of benefits that can be excluded from the scope of the equal treatment provision. Family benefits can be excluded by Member States for intra-​corporate transferees who have been authorised to work and reside for a period of less than 9 months.540 Secondly, the Intra-​Corporate Transfer Directive provides for the export of statutory old-​age, invalidity and survivors’ benefits.541 Finally, the relationship between the Intra-​Corporate Transfer Directive and Regulation 1231/​2010, as well as bilateral agreements on social security concluded by the Member States, must be addressed. In the case of mobility of intra-​corporate transferees between the Member States of the EU for work purposes,542 Regulation 1231/​2010 should apply.543 The rule concerning the application of Regulation 1231/​2010 as well as the general rule of equal treatment enshrined in Article 18(2) of the Intra-​Corporate Transfer Directive should not however prejudice bilateral agreements concluded between a third-​country and a Member State. In the case where there is a bilateral agreement, the rule under the bilateral agreement providing that the law of the country of origin of the intra-​corporate transferee applies should prevail.544 This means that the persons covered by the Intra-​Corporate Transfer Directive should not pay social security contributions and receive benefits thereof in the country of work

5 39 540 541 542

Recital 38 of the Intra-​Corporate Transfer Directive. Article 18(3) of the Intra-​Corporate Transfer Directive. Article 18(2) (d) of the Intra-​Corporate Transfer Directive. Such labour mobility is allowed if the intra-​corporate transferees hold a valid travel permit, see Article 20 of the Intra-​Corporate Transfer Directive. 543 Article 18(2) (c) and Recital 39 of the Intra-​Corporate Transfer Directive. 5 44 Article 18(2) (c) of the Intra-​Corporate Transfer Directive.

The EU legal framework on social security coordination

121

but rather in the country of origin on the basis of a bilateral agreement between the country of work and the country of origin. 2.2.5 Directive 2011/​98/​EU (The Single Permit Directive) 2.2.5.1 Purpose of the Single Permit Directive The Single Permit Directive was proposed at the same time as the Blue Card Directive. The Single Permit Directive took four years of negotiations before its adoption.545 The aim of the Single Permit Directive is, as its name indicates, to establish a simplified procedure and single permit for residence and work of third-​ country nationals in the European Union.546 This idea of having harmonised conditions for entry and residence of third-​country nationals in the European Union dates back to the Tampere Program in 1999. The objectives of the Single Permit Directive are to establish a single application procedure for issuing a single permit to third-​country nationals for the purpose of work and residence to provide rights attached to that permit.547 It does not entail a right to be admitted for employment nor does it provide for the content of the single ­permit.548 2.2.5.2 Equal Treatment Provision of the Single Permit Directive Equal treatment with regard to the social security rights of third-​country nationals is contained in Article 12 of the Single Permit Directive. The equal treatment provision has a restrictive personal scope as compared to the personal scope of the Directive as a whole.549 Article 12(1) of the Single 545 Indeed, the original proposal dates back from October 27th 2007. See Proposal for a Council Directive on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and a common set of rights for third-​country workers legally residing in a Member State, [2007] COM (2007) 638 final. For an extensive discussion on the Single Permit Directive, see P. Minderhoud & T. Striks (Eds.), The Single Permit Directive: Central Themes and Problem Issues (Wolf Legal Publishers 2015). 546 Recital 3 of the Single Permit Directive. 547 Recital 30 of the Single Permit Directive. 548 Indeed, the content of the single permit is determined by Regulation No 1030/​2002. Nonetheless, certain provisions of the Single Permit Directive such as Article 6 and 7 contains some elements of the content of the single permit but those provisions refer to Regulation No 1030/​2002. Council Regulation (EC) No 1030/​2002 of 13 June 2002 laying down a uniform format for residence permits for third-​country nationals, [2002] OJ L 157/​1. 549 The original proposal of the Directive was considered controversial by the Member States as the personal scope of the equal treatment provision was generous. According to the

122 

Chapter 2

Permit Directive stipulates that only those third-​country nationals who are mentioned in Article 3(1) (b)  and (c)  can benefit from the equal treatment provision under the Directive. Hence, third-​country nationals benefiting from equal treatment are those who have been admitted for the purpose of work on the basis of Union law or national law; or who have been admitted for a purpose other than work, who are allowed to work and who hold a residence permit in accordance with Regulation No 1030/​2002. In addition, many third-​ country nationals are automatically excluded from the scope of the Directive because other EU instruments apply to them.550 As under the other Directives analysed in this research, equal treatment under the Single Permit Directive concern all the ‘branches of social security, as defined in Regulation 883/​2004’.551 The Single Permit Directive allows Member States to limit equal treatment concerning family benefits for those third-​country nationals who have been authorised to work for a period of less than 6 months, for the purpose of study, or on the basis of a visa.552 Furthermore, Member States may restrict equal treatment concerning any social security rights of third-​country nationals provided that they do not limit the rights of third-​country nationals who are employed or ‘have been employed for a period of more than 6  months and are registered as unemployed’.553 However, even though the Member States can limit the social security rights for which third-​country nationals are to be granted equal treatment, they have to clearly indicate those limitations in their

550

551 5 52 553

proposal, equal treatment would apply to any third-​country national worker meaning any third-​country national who has been admitted and is allowed to work legally in a Member State (Article 2(b) of the Commission Proposal). This generous scope was perceived as a threat to the financial stability of the Member States. For that reason, the Council drastically restricted the personal scope of the equal treatment provision (Article 12). For a discussion on the context of adoption of the Directive, see A. Beduschi, ‘An Empty Shell? The Protection of Social Rights of Third-​Country Workers in the EU after the Single Permit Directive’ 17 European Journal of Migration and Law (2015) 214; K. Groenendijk, ‘Equal treatment of workers from third countries: the added value of the Single Permit Directive’ ERA Forum (2015) 4. According to Article 3(2) of the Single Permit Directive, this is the case for family members of EU citizens (Article 3(2)(a)), eea and Swiss nationals and their family members (Article 3(2)(b)), posted workers (Article 3(2)(c)), intra-​corporate transferees (Article 3(2)(d)), seasonal workers and au pairs (Article 3(2)(e)), beneficiaries of temporary (Article 3(2)(f)) or international protection (Article 3(2)(g)), and long-​term residents (Article 3(2)(i)). Article 12(1)(e) of the Single Permit Directive. Equal treatment as regards social security is also mentioned in Recital 24 of the Directive. Article 12(2)(b) of the Single Permit Directive. Article 12 (2) (b) of the Single Permit Directive.

The EU legal framework on social security coordination

123

implementation of the Single Permit Directive. In the Martinez Silva case,554 the question was asked to the Court of Justice whether Article 12 of the Single Permit Directive was to be interpreted as precluding national legislation which refuses the grant of a family benefit to a person holding a single permit. Mrs Martinez Silva, a third-​country national holder of a single work permit, was denied a type of family benefit in Italy on the basis that she did not have long-​ term resident’s status. The Court held that the general rule under the Single Permit Directive is equal treatment as regards to social security.555 While there are possible derogations from the equal treatment provision, if a Member State wants to use the possibility to derogate, it must do so explicitly in its implementation of the Directive. The referring Italian court indicated to the Court of Justice that such a derogation was not done in the national law implementing the Directive but was contained in another law prior to one implementing the Directive.556 The Court of Justice considered that there was no indication of an intention by the Italian government to introduce the restrictions and therefore that the law prior to the implementation of the Directive may not preclude a third-​country national holder of a single permit from being granted a family benefit.557 Despite the fact that many limitations to equal treatment are allowed under the Single Permit Directive, it presents the advantage to include a provision on equal treatment concerning the export of certain benefits: old-​age pensions, invalidity and death grants benefits.558 This provision permits the export of benefits without the need of a bilateral agreement between States providing for it. 2.2.6 Directive 2014/​36/​EU (The Seasonal Workers Directive) 2.2.6.1 Purpose of the Seasonal Workers Directive The Seasonal Workers Directive was adopted in 2014559 after 3 years and half of negotiations560 and 12 ‘yellow cards’ issued by national parliaments561 as it 5 54 555 556 557 558 559 560

Case C-​449/​16 Martinez Silva, ECLI:EU:C:2017:485. Case C-​449/​16 Martinez Silva, ECLI:EU:C:2017:485, para.29. Case C-​449/​16 Martinez Silva, ECLI:EU:C:2017:485, para 30. Case C-​449/​16 Martinez Silva, ECLI:EU:C:2017:485, para.31. Article 12 (4) of the Single Permit Directive. The Seasonal Workers Directive needs to be implemented by 30 September 2016. Proposal for a Directive of the European Parliament and the Council on the conditions of entry and residence of third-​country nationals for the purposes of employment as seasonal workers, [2014] OJ L 94/​375. 561 A. Töttős, ‘The Past, the Present and the Future of the Seasonal Workers Directive’ Pécs Journal of International and European Law (2014) 46.

124 

Chapter 2

was felt to intervene on the Member States’ competence on admission of third-​ country nationals for labour purposes.562 The Seasonal Workers Directive covers two main objectives: answering to the need for a seasonal labour supply while ensuring the protection of seasonal workers.563 It regulates the conditions for entry and stay of third-​country seasonal workers as well as the rights attached to that status.564 The Seasonal Workers Directive makes a distinction between stays under a period of 90 days and beyond 90 days. For stays under 90 days, the entry procedure of the Schengen acquis is applicable565 while the working permit for the seasonal worker is delivered on the basis of the Seasonal Workers Directive.566 For stays beyond 90 days, the Seasonal Workers Directive is applicable for both the entry and working permit.567 Next to the criteria and requirements for admission, the Seasonal Workers Directive also provides for mandatory as well as optional grounds of rejection.568 If the seasonal worker is accepted, his/​her duration of stay is to be determined by the Member State concerned. Nonetheless, the Seasonal Workers Directive obliges the Member States to fix the duration between 5569 and 9 months.570 The scope of the Seasonal Workers Directive is rather restrictive as it applies only to third-​country nationals residing outside the EU.571 Therefore, the Seasonal Workers Directive does not apply to third-​country nationals already residing within the EU; to family members of EU citizens who have exercised their free movement rights; to migrants and their family members who enjoy free movement equivalent to EU citizens due to bilateral agreements (eg. Swiss nationals and eea nationals);572 and to posted workers.573 The exclusion of posted workers means that the Directive does not prohibit an employer from

5 62 Article 79(5) tfeu. 563 Recital 7 and 43 of the Preamble of the Seasonal Workers Directive. 564 For a detailed overview of the Seasonal Workers Directive, see J.  Fudge & P.  Herzfeld Olsson, ‘The EU Seasonal Workers Directive: When Immigration Controls Meet Labour Rights’ 16 European Journal of Migration and Law (2014) 439–​466. 565 Article 1(2) and Recital 19 of the Seasonal Workers Directive. 566 Article 5 of the Seasonal Workers Directive. 567 Article 6 of the Seasonal Workers Directive. 568 Article 8 of the Seasonal Workers Directive. 569 The 5 months-​period was a request of the Netherlands because after 5 months, the seasonal worker is entitled to social assistance under Dutch law. 570 Article 14(1) of the Seasonal Workers Directive. 571 Article 2(1) and Recital 15 of the Seasonal Workers Directive. 572 Article 2(3) of the Seasonal Workers Directive. 573 Article 2(3)(a) of the Seasonal Workers Directive.

The EU legal framework on social security coordination

125

posting a seasonal worker to another Member State.574 In addition to the numerous exclusions from the personal scope, the Member States enjoy a large discretion with regard to the material scope when implementing the Directive. Indeed, Member States enjoy discretion in listing the sectors concerned with seasonal work.575 2.2.6.2 Equal Treatment Provision of the Seasonal Workers Directive The equal treatment provision of the Seasonal Workers Directive covers equal treatment with regard to working conditions, the right to strike and take industrial action, back payments, all branches of social security defined under Article 3 of Regulation 883/​2004, access to goods and services made available to the public (except housing), advice services on seasonal work, education and vocational training,576 recognition of diploma and tax benefits.577 Hence, as all the other Directives analysed in this research, the Seasonal Workers Directive cover all the social security rights listed in Article 3 of Regulation 883/​2004. However, certain benefits may be excluded from the equal treatment provision by the Member States. This is the case for family and unemployment benefits, study and maintenance grants, and certain types of tax benefits.578 On a positive note, the Seasonal Workers Directive provides equal treatment concerning the export of pension rights.579 Hence, when going back to his country of origin, the seasonal worker or the survivors of the seasonal worker, should receive statutory pensions based on his seasonal work under the same conditions and same rate as the nationals of the Member State concerned. Here the wording of the Directive is problematic for the purpose of comparison as it provides for export of statutory pensions. The other Directives that allow export of benefits, i.e. the Single Permit Directive, the Blue Card Directive and the Intra-​Corporate Directive, all mention which specific benefit is exportable. Hence, the Single Permit Directive and the Intra-​Corporate Directive mention invalidity, old-​age and survivors’ benefits580 whereas the Blue 574 This prohibition was demanded by the European Parliament during the negotiation of the Seasonal Workers Directive, see Council of the EU, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of seasonal employment’, INI 2010/​0210(COD), amendment 42. 575 Article 2(2) of the Seasonal Workers Directive. 576 It can be limited. 577 Article 23 of the Seasonal Workers Directive. 578 Article 23(2) of the Seasonal Workers Directive. 579 Article 23 (1) last sentence, of the Seasonal Workers Directive. 580 Article 12(4) of the Single Permit Directive; Article 18(2) (d)  of the Intra-​Corporate Transfer Directive.

126 

Chapter 2

Card Directive mentions old-​age benefits only.581 The lack of explicit reference to either old-​age statutory benefits or old-​age, invalidity and survivor’s benefits in the Seasonal Workers Directive can be regretted. 2.2.7 Directive 2003/​109/​EC (The Long-​Term Residence Directive) 2.2.7.1 Purpose of the Long-​Term Residence Directive The Long-​Term Residence Directive determines the terms and conditions for granting or withdrawing long-​term resident status to third-​country nationals legally residing in the territory of one of the Member States of the EU. Long-​ term resident status is granted by the Member States to third-​country nationals legally and continuously residing within its territory for five years.582 Pursuant to Article 3(1), the Long-​Term Residence Directive applies to third-​ country nationals legally residing in the territory of a Member State. Article 3(2) enumerates a list of third-​country nationals who are excluded from the application of the Long-​Term Residence Directive.583 Originally, refugees and beneficiaries of subsidiary protection were excluded from the scope of the Directive but amendments in 2011 have remedied that situation.584 581 Article 14(1) (f) of the Blue Card Directive. It should be noted that the revised version of the Blue Card Directive mentions equal treatment with regard to export of old-​age, invalidity and survivor’s benefits. 582 Article 4(1) of Directive 2003/​109/​EC. 583 Those excluded third-​country nationals are those who reside for study purposes or vocational training; reside on the basis of temporary protection or are awaiting a decision on their status; reside on the basis of a subsidiary form of protection in accordance with international obligations; national legislation or the practice of the Member States; are refuges or have applied for recognition as refugees and have not received a final decision; reside solely on temporary grounds such as au pair or seasonal worker; enjoy a legal status governed by the Vienna Convention on Diplomatic Relations of 1961. 584 The 2001 proposal of the Long-​Term Directive included refugees (Article 2(f) of the proposed Directive, see Proposal for a Council Directive concerning the status of third-​ country nationals who are long-​term residents, [2001] COM (2001) 127 final) and beneficiaries of subsidiary protection (Article 22 of the proposed Directive, see Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, [2001] COM (2001) 510 final). However, that inclusion was not accepted by the Council and therefore the Directive 2003/​109/​EC was adopted without including those migrants. After the entry into force of the Lisbon Treaty and the abolishment of the unanimity requirement for the adoption of such an instrument, amendments were made to include refugees and beneficiaries of subsidiary protection (see Directive 2011/​51/​EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/​109/​EC to extend its scope to beneficiaries of international protection, [2011] OJ L 132/​1). On the extension of the scope of the Directive to refugees and beneficiaries of international protection, see S. Peers, ‘Legislative Update EU Immigration

The EU legal framework on social security coordination

127

Mobility across the EU of Long-​Term Resident third-​country national is allowed without any requirement except that the stay should not be longer than three months.585 After a stay of three months in another Member State than the one that granted the Long-​Term Residence permit, the Long-​Term Resident third-​country national must ask for a residence permit in the Member State where he intends to reside.586 The social security rights of such a mobile third-​ country nationals will then fall under the scope of Regulation 1231/​2010. Article 3(3) provides that the Long-​Term Residence Directive should apply without prejudice to more favourable provisions of bilateral or multilateral agreements between the European Union and its Member States, on the one hand, and third countries, on the other hand; as well as more favourable provision from bilateral or multilateral agreements concluded between Member States and third-​countries before the date of entry into force of the Directive.587 In that regard, workers coming from Turkey, Morocco, Tunisia and Algeria all benefit from more favourable conditions on social security arising from the agreements concluded by the EU with those third countries.588 Concerning Turkish workers, under Article 6(1) of Decision 1/​80, Turkish workers have to wait for a period of 4 years before they can access the labour market, instead of 5 years as provided by Article 4(1) of the Long-​Term Residence Directive. The fact the Directive contains a rule on its relationship with agreements having more favourable provisions does not mean that Member States are precluded from adopting less favourable provisions in bilateral agreements with third-​countries. Indeed, the Long-​Term Residence Directive does not contain a ‘stand-​still’ clause.589

5 85 586 587

588

589

and Asylum Law 2010:  Extension of Long-​term Residence Rights and Amending the Law on Trafficking in Human Beings’ 13 European Journal of Migration and Law (2011) 206–​212. Article 14 (1) of the Long-​Term Residence Directive. Article 15(1) of the Long-​Term Residence Directive. It also provides that the Long-​Term Directive should apply without prejudice to more favourable provisions of the European Convention on Establishment of 13 December 1955, the European Social Charter of 18 October 1961, the amended European Social Charter of 3 May 1987 and the European Convention on the Legal Status of Migrant Workers of 24 November 1977. This is mainly due to the interpretation given by the cjeu regarding the bilateral agreements, see Case C-​277/​94 Taflan-​Met and Others, ECLI:EU:C:1996:315; Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36; Case C-​103/​94 Krid v Caisse nationale d’assurance vieillesse des travailleurs salariés, ECLI:EU:C:1995:97. L. H.  Storgaard, ‘The Long-​Term Residents Directive:  A Fulfilment of the Tampere Objective of Near-​Equality?’, in E. Guild & P. Minderhoud (Eds.), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff Publishers 2011) 307.

128 

Chapter 2

2.2.7.2 Equal Treatment Provision of the Long-​Term Residence Directive Concerning the social security rights of the long-​term residents, Article 11(d) of the Long-​Term Residence Directive provides for equal treatment not only with regard to social security but also to social assistance and social protection.590 The definition of the concepts of social security, social assistance and social protection are further left to national law.591 While the Long-​Term Residence Directive seems far-​reaching in terms of equal treatment in the field of social protection, Article 11(4) allows the Member States to limit equal treatment to core benefits with respect to social assistance and social protection.592 The core benefits are listed in Recital 13 of the Long-​Term Residence Directive as being minimum income support, assistance in case of illness, pregnancy, parental assistance and long-​term care. That list is however non-​exhaustive. The derogations allowed under Article 11(4) and the concept of ‘core benefits’ have been interpreted by the Court in the Kamberaj case. Mr Kamberaj was an Albanian national in possession of an indefinite period residence permit in Italy. He received housing benefits in accordance with Italian provincial law for 10 years (1998–​2008) but then was refused those 590 It is worth noting that the proposal for the Directive 2003/​109/​EC included a non-​ discrimination clause in the Directive (see Article 4 of the Proposal for a Council Directive concerning the status of third-​country nationals who are long-​term residents, [2001] COM (2001) 127 final, 79–​87) but the Council made the choice to push that provision in the Recital of the Directive. It is now in Recital 5 of Directive 2003/​109/​EC. 591 Article 11(d) of Directive 2003/​109/​EC. 592 The exclusion of social assistance to equal treatment under Article 11(4) of the Long-​Term Residence Directive has been criticised by numerous authors (D. Acosta Arcarazo, The Long-​Term Residence Status as a Subsidiary Form of EU Citizenship: An Analysis of Directive 2003/​109 (Brill 2011); S.  Peers, ‘Implementing Equality? The Directive on Long Term Resident Third Country Nationals’ 29 European Law Review (2004) 437; L. Halleskov, ‘The Long-​Term Residents Directive: A Fulfilment of the Tampere Objective of Near-​Equality?’ 7 European Journal of Migration Law (2005) 181; S.  Iglesias Sánchez, ‘Free Movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice’ 16 European Law Journal (2009) 791; and M. Jesse, ‘Missing in Action: Effective Protection for Third-​Country Nationals from Discrimination under Community Law’ in E.  Guild, K.  Groenendijk and S.  Carrera (Eds.), Illiberal Liberal States:  Immigration, Citizenship and Integration in the EU (Ashgate 2009)  187–​203; L.  H. Storgaard, ‘The Long-​Term Residents Directive: A Fulfilment of the Tampere Objective of Near-​Equality?’, in E. Guild & P.  Minderhoud (Eds.), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff Publishers 2011) 299–​328). Other authors recognize that it represents a step in the right direction paving the way for the next legislative instruments to include further-​ reaching equal treatment provisions (For example, see K. de Vries, ‘Towards integration and equality for third-​country nationals? Reflections on Kamberaj’ 38 European Law Review (2013) 249).

The EU legal framework on social security coordination

129

benefits in 2009 on the ground that the funds for third-​country nationals were exhausted. There was a differentiation between EU citizens and third-​country nationals for the allocation of the funds for housing benefits. One of the questions referred to the Court of Justice was whether such a differential treatment was allowed under the Long-​Term Residence Directive.593 The Court recalled the intention of the EU legislator to leave the definition of social security, social assistance and social protection to the Member States.594 However, the Court also found that Member States must ensure that they do not undermine the effectiveness of the Long-​Term Residence Directive when they apply the equal treatment provision.595 In particular, the concept of ‘core benefits’ in Article 11(4) of the Directive must be seen in the context of that article and the objective of the Directive which is the integration of Long-​Term Resident third-​country nationals.596 Member States must respect the rights provided by Article 34 of the Charter (e.g.: right to social and housing assistance in Article 34(3)).597 In that context, the Court held that Article 11(4) of the Long-​Term Residence Directive must be interpreted as permitting the Member States to limit the equal treatment provision except with regard to social assistance or social protection benefits that enable individuals to meet their basic needs such as food, accommodation and health.598 Additionally, in any case, Article 11(4) constitutes an exception to the rule on equal treatment and must be therefore be interpreted strictly.599 Concerning social assistance, it must be said that, in order to acquire long-​ term resident status, the third-​country national should not be dependent on the Member State’s social assistance system.600 However, once the status of long-​term resident is awarded, reliance on the social assistance system cannot be invoked by the Member State as a reason to withdraw the status.601 Finally, there is no reference to export of benefits in the Long-​Term Residence Directive. This lack of export of benefits as well as the exclusion of social assistance schemes from the equal treatment provision are the reasons why the Long-​Term Residence Directive is at the end of the classification for the purpose of this research. 5 93 594 595 596 597 598 599 600 601

Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para.64. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, paras. 76–​77. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para. 78. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para.90. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para. 80. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para. 91. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para.86. Article 5(1) of the Long-​Term Residence Directive. Article 9 of the Long-​Term Residence Directive.

130 

Chapter 2

2.2.8

Directive 2016/​801 (Re-​Cast of the Students and Researchers Directives) 2.2.8.1 Purpose of the Students and Researchers Directive The Students and Researchers Directives were adopted separately in 2004602 and 2005603 respectively. Those Directives were adopted with the over-​arching goal of attracting talents and highly-​skilled third-​country nationals to the European Union.604 However, the impact assessment conducted by the European Commission revealed some weaknesses in the system.605 Following the results of the impact assessment, the European Commission launched in 2013 a proposal to reform and merge the Students and Researchers Directive.606 The new Directive 2016/​801, re-​cast of the Students and Researchers Directives, was adopted on 11th May 2016.607 It should be implemented by 23rd May 2018. The re-​cast of the Students and Researchers Directives applies to third-​ country nationals who apply for entry and residence in the territory of a Member State for the purpose of research, studies, training or voluntary service in the European Voluntary Service.608 Additionally, at the discretion of the Member States, the re-​cast Directive may apply to third-​country nationals who apply to be admitted for the purpose of a pupil exchange scheme or educational project, voluntary service other than the European Voluntary Service or au pairing.609 Directive 2016/​806 does not apply however to EU Blue 602 Council Directive 2004/​114/​EC of 13 December 2004 on the conditions of admission of third country nationals for the purpose of studies, pupil exchange, unremunerated training, or voluntary service, [2004] OJ L 375/​12. 603 Council Directive 2005/​71/​EC of 12 October 2005 on a specific procedure admitting third-​country nationals for purposes of scientific research, [2005] OJ L289/​15. 604 Recitals 6 and 7 of Directive 2004/​114; Case C-​15/​11 Sommer, ECLI:EU:C:2012:371, para.39. 605 European Commission, ‘Commission Staff working document-​impact assessment accompanying the document Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing’, [2013] SWD (2013) 77 final. 606 Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing [Re-​cast], [2013] COM (2013) 151 final. 607 Directive 2016/​801/​EU of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or education projects and au pairing, [2016] OJ L 132/​21 (re-​cast of the Students and Researchers Directive). 608 Article 2(1) of the re-​cast Students and Researchers Directive. 609 Article 2(1), second sentence of the re-​cast Students and Researchers Directive.

The EU legal framework on social security coordination

131

Card holders; third-​country nationals who are trainee employees in the context of an intra-​corporate transfer falling under Directive 2014/​66; Long-​Term Residents under Directive 2003/​109; third-​country nationals who are family members of EU citizens exercising their free movement rights; third-​country ­nationals and their family members who themselves enjoy free movement rights equivalent to those of EU citizens based on agreements either between the Union and its Member States and third-​countries or between the Union and third-​countries;610 third-​country nationals who seek international protection or who are beneficiaries of international protection in accordance with the Directive 2011/​95 or who are beneficiaries of temporary protection in accordance with the Council Directive 2001/​55; third-​country nationals whose expulsion has been suspended for reasons of fact or law.611 2.2.8.2 Equal Treatment Provision of the Students and Researchers Directive Concerning the social security rights of students and researchers, the old Students Directive (Directive 2004/​114) did not contain an equal treatment provision while the old Researchers Directive (Directive 2005/​71/​EC) provided for equal treatment concerning all branches of social security listed in Regulation 1408/​71.612 In the re-​cast Directive, equal treatment is provided in Article 22. Article 22 of the re-​cast Directive makes a distinction between researchers on one hand, and students, trainees, volunteers and au pairs on the other hand. Researchers benefit from equal treatment by reference to Article 12(1) and (4) of the Single Permit Directive, which includes equal treatment with regard to all branches of social security as defined by Regulation 883/​2004.613 Article 12(4) of the Single Permit Directive permits equal treatment concerning the export of old-​age, invalidity and survivors’ pensions. Trainees, volunteers, and au pairs who are in an employment relationship as well as students are also entitled to equal treatment as provided for in Article 12(1) and (4) of the Single Permit Directive. The difference with the provision for the researchers is the restrictions allowed by Article 12(2) of the Single Permit Directive which apply to trainees, volunteers and au pairs who are in an employment relationship.614 The restrictions found in Article 12(2) of the Single Permit Directive allow Member States to decide 610 For example, Swiss nationals who enjoy free movement rights under the EU-​Swiss Free Movement Agreement. 611 Article 2(2) of the re-​cast Students and Researchers Directive. 612 Article 12 (c) and recital 16 of Directive 2005/​71/​EC. 613 Article 12(1) of the Single Permit Directive. 614 Article 22(3) of the re-​cast Students and Researchers Directive.

132 

Chapter 2

that the equal treatment provision does not apply to family benefits for those third-​country nationals who have been authorised to work for a period of less than 6 months, for the purpose of study.615 Considering that the old Student Directive did not contain a reference to equal treatment in the field of social security, the re-​cast Directive improves the situation of students. However, for those trainees, volunteers and au pairs who are not in an employment relationship,616 the equal treatment provision of the re-​cast Students and Researches Directive does not include equal treatment with regard to social security.617 The re-​cast Directive contains a reference to social benefits in the context of the admission of third-​country nationals. Hence, having sufficient resources without having recourse to the Member State’s social assistance system is a condition for admission under the re-​cast Directive.618 It is also a condition for the mobility of researchers and students within the EU.619 Under the old Student Directive, the Court of Justice already had the occasion in the Ben Alaya case620 to rule on the discretion offered by national authorities in interpreting the conditions for admission of a third-​country national.621 Mr Ben Alaya was a Tunisian national born in Germany but who left Germany at the age of 6 to return to Tunisia. After completing his baccalaureate degree in Tunisia, Mr Ben Alaya wanted to pursue higher education in Germany. Being accepted by the Technische Universität Dortmund to study mathematics, Mr Ben Alaya application for a student visa was refused by the German authorities on the grounds his motivation for wishing to study in Germany was doubtful, particularly in the light of the inadequacy of the grades previously obtained, his weak knowledge of German and the fact that there was no connection between his 6 15 Article 12(2) (b) of the Single Permit Directive. 616 Whether the trainees, volunteers and au pairs will be on an employment relationship depends on whether they exercise activities covering any form of labour or work regulated under national law or applicable collective agreements or in accordance with established practice for or under the direction or supervision of an employer (Article 3(16) of the re-​cast Students and Researchers Directive. 617 Article 22(4) of the re-​cast Students and Researchers Directive. 618 Article 7 (1) (e) of the re-​cast Students and Researchers Directive. 619 Article 28 (6) (d), Article 29 (2) (a) (iii), Article 31 (6) (d) of the re-​cast Students and Researchers Directive. 620 Case C-​491/​13 Ben Alaya, ECLI:EU:C:2014:2187. 621 See also on the conditions to be applied to Bulgarian students, the Sommer Case. According to this case, the preference clause that was granted to Bulgarians in the context of their admission to the EU implies that Bulgarian nationals should be granted access to the labour market under conditions which were not more restrictive than those set out in Directive 2004/​114 for third country nationals (the old Students Directive). Case C-​15/​11 Sommer, ECLI:EU:C:2012:371, para. 35.

The EU legal framework on social security coordination

133

proposed course of study and his intended career.622 Those grounds raised by the German authorities for refusing his student visa were not amongst the grounds enumerated by the Students Directive in Articles 6 and 7. The question referred to the Court of Justice was therefore whether the national authorities were obliged to admit to its territory a third-​country national who meets the conditions for admission laid down in Articles 6 and 7 of the Students Directive, even though that third-​country national does not meet all the conditions under national law.623 The Court of Justice found that, according to a literal interpretation, the conditions provided in Articles 6 and 7 constituted an exhaustive list and that if the third-​country national complies with those conditions, a residence permit must be delivered in accordance with Article 12 of the Students Directive.624 Furthermore, the Court of Justice held that allowing a Member State to introduce additional conditions of entry and residence would be contrary to the objectives of the Directive which seeks to promote the mobility of third-​country nationals students in the EU for the purpose of education and to make the EU a centre of excellence for education and vocational training.625 Even though the Ben Alaya case concerned the old version of the Students Directive, that ruling by the Court of Justice is still relevant for the interpretation of the admission and mobility conditions of the re-​cast Directive as the conditions are equally listed exhaustively and the overall objectives of student mobility and making the EU a centre of excellence for education are still present in the re-​cast Directive.626 3

The EU Charter of Fundamental Rights

Finally, an account of the relevant EU instruments for the social security rights of third-​country nationals would not be complete without a discussion of the EU Charter of Fundamental Rights (hereinafter ‘the EU Charter’). Since the entry into force of the Lisbon Treaty, the EU Charter has the same legal value as the Treaties.627 Many provisions of the EU Charter can be relevant for the subject of social security coordination. Article 34 of the EU Charter deals specifically with 6 22 Case C-​491/​13 Ben Alaya, ECLI:EU:C:2014:2187, paras. 14–​20. 623 Case C-​491/​13 Ben Alaya, ECLI:EU:C:2014:2187, para.21. 624 Case C-​491/​13 Ben Alaya, ECLI:EU:C:2014:2187, para. 27. 625 Case C-​491/​13 Ben Alaya, ECLI:EU:C:2014:2187, paras.29–​30. 626 Recital 6, 8, 14, 15 of the Preamble of the re-​cast Students and Researchers Directive. 627 Article 6 teu.

134 

Chapter 2

social security and social assistance. This provision is discussed later in this Section. In addition to this specific provision on social security, Article 20 of the EU Charter enshrines the general EU law principle of equal treatment which is relevant for the equal treatment of non-​nationals in the field of social security. Also, Article 47 of the EU Charter on the right to an effective remedy and a fair trial can be relevant for the administrative procedures in claiming social security rights. 3.1 The Applicability of the EU Charter Articles 51 to 54 of the EU Charter indicate when the Charter is applicable and how its provisions are to be interpreted. The scope of application of the EU Charter is specified in its Article 51. Firstly, Article 51 states that the Charter is addressed to the institutions, bodies, offices and agencies of the Union. According to the Explanations to the Charter,628 Article 51(1) of the EU Charter was drafted in line with Article 6(2) teu which provides for the accession of the EU to the echr and thereby requires the EU to respect fundamental rights.629 In addition, Article 2 teu provides that the EU ‘is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities’. Those values, including the respect for human rights, must be upheld and promoted by the EU in its relations with third countries.630 While the EU Charter only applies to the Member States when they act within the scope of EU law, the EU Charter always applies to the EU institutions. It goes as far as to apply to the EU institutions when they act outside the EU legal order.631 Hence, it is not difficult to claim 628 The importance of the Explanations to the Charter can be found in Article 6(1) teu and Article 52(7) of the EU Charter. Article 6(1) teu states that ‘The rights, freedoms and principles in the Charter shall be interpreted (…) with due regard to the explanations referred to in the Charter’ and Article 52(7) of the EU Charter provides that ‘the explanations drawn up as a way of providing guidance in the interpretation of this Charter shall be given due regard by the courts of the Union and of the Member States’. See also J-​P. Jacqué, ‘Explanations Relating to the Charter of Fundamental Rights to the European Union’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 1715–​1724. 629 Explanations relating to the Charter of Fundamental Rights, [2007] OJ C 303/​32. 630 Article 3(5) teu and Article 21 (1) teu. 631 Joined Cases C-​8/​15 P, C-​9/​15 P and C-​10/​15 P Ledra Advertising v Commission and ECB, ECLI:EU:C:2016:701, para.67; Opinion of Advocate General Wahl in Joined Cases C-​8/​15 P, C-​9/​15 P and C-​10/​15 P Ledra Advertising v Commission and ECB, ECLI:EU:C:2016:290, para.85; S. Peers had already in 2013 suggested the application of the EU Charter to any action of the EU institutions, including outside the EU legal order; S.  Peers, ‘Towards

The EU legal framework on social security coordination

135

that the EU Charter would apply to any agreement concluded by the EU with third countries; including agreements that include social security provisions such as the Association Agreements. Secondly, Article 51 of the EU Charter provides that it applies to the Member States when they are implementing EU law. ‘Member States’ should be understood as meaning the central authorities as well as regional or local bodies, and public organisations.632 The meaning of ‘implementing EU law’ must be interpreted in the light of the Explanations of the EU Charter.633 According to the Explanations of the Charter, the EU Charter applies to ‘Member States when they act within the scope of EU law’.634 Following the Åkerberg Fransson judgment, this means that the EU Charter is applicable to a legal situation that falls within the scope of EU law.635 However, when the legal situation does not fall within the scope of EU law, the EU Charter does not apply to the Member States.636 The Dano case is a relevant example for the field of social security coordination and illustrates the situation where the EU Charter does not apply.637 In Dano, the referring court asked whether Articles 1, 20 and 51 of the EU Charter required a Member State to provide for non-​contributory benefits in so far as to enable permanent residence for Union citizens.638 The Court of Justice held that the EU rules for ‘special non-​contributory benefits’, as defined by Article 70 of Regulation 883/​2004, were not intended to determine the conditions for the grant of such benefits. It held that it is up to the national legislation to determine the conditions for the grant of non-​contributory benefits.639 And therefore, as there was no EU legislation concerned with the grant of non-​contributory benefits and as it was up to national legislation alone, the Court refused to apply the EU Charter.640 a New Form of EU Law?: The Use of EU Institutions outside the EU Legal Framework’ European Constitutional Law Review (2013) 51–​53. 632 Explanations relating to the Charter of Fundamental Rights, [2007] OJ C 303/​32. 6 33 Article 6(1) teu and Article 52(7) of the EU Charter. 634 Explanations relating to the Charter of Fundamental Rights, [2007] OJ C 303/​32. 635 Case C-​617/​10 Åkerberg Fransson, ECLI:EU:C:2013:105, para.21. 636 Case C-​617/​10 Åkerberg Fransson, ECLI:EU:C:2013:105, para.22. 637 Case C-​333/​13 Dano, ECLI:EU:C:2014:2358. 638 Case C-​333/​13 Dano, ECLI:EU:C:2014:2358, para.45. 639 Case C-​333/​13 Dano, ECLI:EU:C:2014:2358, para.89. 640 Case C-​333/​13 Dano, ECLI:EU:C:2014:2358, para.91. The fact that the Court of Justice has refused to apply the EU Charter to the Dano case has been criticised in the literature considering the fact that Mrs Dano had exercised her free movement rights and that her situation fell within the scope of EU law. See X. Groussot and G. T. Petursson, ‘The EU Charter of Fundamental Rights Five Years on: The Emergence of a New Constitutional

136 

Chapter 2

Finally, a last point must be made with regard to the application of the EU Charter to bilateral agreements concluded by the Member States with third countries. At first sight, one might be tempted to say that the bilateral agreements do not fall within the scope of EU law and therefore the EU Charter is inapplicable. However, following the Gottardo case, a bilateral agreement concluded by a Member State and a third country could apply to an EU citizen who exercised his freedom of movement. The EU Charter would apply to that EU citizen. Hence, the EU Charter would apply to a person to whom EU law applies, either via the general principle of equal treatment or via the free movement provision, and who could rely on a bilateral agreement concluded by a Member State with a third country.641 Nonetheless, the EU Charter would not apply to situations covered by a bilateral agreement concluded between a Member States and a third country in cases where no link with EU law would be found.642 3.2 Article 34 of the EU Charter: Social Security and Social Assistance Title IV of the EU Charter entitled ‘Solidarity’ contains several social rights such as the right to information and consultation within the undertaking (Article 27) or fair and just working conditions (Article 31). Article 34 of the EU Charter deals specifically with social security and social assistance. It provides that: The Union recognises and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Community law and national laws and practices.

Framework?’, in S. de Vries, U. Bernitz & S. Weatherill (Eds.), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015) 152; H. Verschueren, ‘Preventing ‘Benefit Tourism’ in the EU: a narrow or broad interpretation of the possibilities offered by the ECJ in Dano’, 52(2) Common Market Law Review (2015) 363–​390; G. Vonk, ‘EU-​Freedom of Movement: No Protection for the Stranded Poor, Case-​ note on C-​333/​13, Elisabeta Dano v Jobcenter Leipzig, November 25 2014’, European Law Blog, available at http://​europeanlawblog.eu/​2014/​11/​25/​eu-​freedom-​of-​movement-​no-​ protection-​for-​the-​stranded-​poor/​, last accessed on 31 May 2019. 641 By analogy, see the Petruhhin case on a bilateral agreement on extradition and the applicability of the Charter. Case C-​182/​15 Petruhhin, ECLI:EU:C:2016:630, paras.51–​60. 6 42 The fact that the situation would be outside the territory of the EU would not be an obstacle to the applicability of the Charter as the Charter does not contain a territorial scope. See by analogy, Opinion of Advocate General Mengozzi in Case C-​638/​16 PPU, X, X v État belge, ECLI:EU:C:2017:93, para.90.

The EU legal framework on social security coordination

137

Everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Community law and national laws and practices. In order to combat social exclusion and poverty, the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources, in accordance with the rules laid down by Community law and national laws and practices The scope of Article 34 covers both social security and social and housing assistance.643 The first and third paragraphs of Article 34 of the EU Charter contain principles644 that the EU should respect when it takes measures on social security under Article 153 tfeu.645 The fact that both paragraphs refer to ‘Community law and national laws and practices’ means that those paragraphs need to be further implemented in EU law and national law.646 In relation to this, Article 1(2) of Protocol No 30 provides that Title IV on ‘Solidarity’, of which Article 34 is part, does not create any justiciable rights applicable to Poland or the United Kingdom except in so far as Poland and United Kingdom have provided for such rights in their national law.647 However, Protocol No 30 does 643 It should be noted that entitlement to healthcare is covered by Article 35 of the EU Charter. 644 Most authors consider that Article 34 (1) and (3) of the EU Charter are principles. See J. Kenner, ‘Economic and Social Rights in the EU Legal Order: the Mirage of Indivisibility’, in T.  Hervey & J.  Kenner (Eds.), Economic and Social Rights under the EU Charter of Fundamental Rights:  a Legal Perspective (Hart Publishing 2003)  23; M.  Gijzen, ‘The Charter: A milestone for social protection in Europe’, 8 Maastricht Journal of European and Comparative Law (2001) 40; J. Tooze, ‘Social security and social assistance’, in T. Hervey & J.Kenner (Eds.), Economic and Social Rights under the EU Charter of Fundamental Rights: a Legal Perspective, (Hart Publishing 2003) 163. 645 Article 153 tfeu is mentioned in the Explanation to the EU Charter. 646 By analogy to the Glatzel case on Article 26 of the EU Charter and the AMS case on Article 27 of the EU Chater. Case C-​356/​12 Glatzel, ECLI:EU:C:2012:350, para.78; Case C-​176/​12 Association de mediation sociale ECLI:EU:C:2014:2, paras. 45 and 47. R.C.A. White, ‘Article 34-​Social Security and Social Assistance’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights:  A Commentary (Hart Publishing 2014)  936; J. Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice’ 11 European Constitutional Law Review (2015) 321–​356. 647 For a general discussion about Protocol (No 30)  and its meaning for the applicability of the EU Charter, See A.  Arnull, ‘Protocol (No 30)  on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom’, in

138 

Chapter 2

not imply that the EU Charter is not applicable to Poland and the United Kingdom.648 Compared to the first and third paragraphs of Article 34, the second paragraph is worded in terms of rights. It refers to entitlement to social security arising from EU law or national law. This second paragraph ensures that access to social rights is provided for everyone residing and moving legally within the European Union, without any condition regarding their nationality. Hence it includes the access to social rights for third-​country nationals moving and residing legally within the European Union.649 The content of that provision is rather vague and it is not considered to have direct effect. 650 The added value of Article 34 of the EU Charter compared to other international standards651 is often questioned, however the relevance of Article 34 of the EU Charter resides in its interpretative nature.652 Currently, the Kamberaj case is the only case where explicit reference to Article 34 of the EU Charter was made by the Court of Justice.

6 48 649 650

651

652

S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014)  1597–​ 1612; C.  Barnard, ‘The Silence of the Charter: Social Rights and the Court of Justice’, in S. de Vries, U. Bernitz & S. Weatherill (Eds.), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015) 171. Case C-​411/​10 N.S., ECLI:EU:C:2011:865, paras.116–​122. E. Eichenhofer, ‘Social security as a human right: A European perspective’, in F. Pennings & G.  Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 28. J. Paju considered that the cases of Kamberaj and AMS confirm that Article 34 of the EU Charter contain principles rather than enforceable rights. J. Paju, ‘Much Ado About Nothing? How the EU Charter of Fundamental Rights Could Challenge Prevailing Notions of Territorial Rights and Solidarity as Regards National Social Security Systems’, in S. de Vries, U. Bernitz & S. Weatherill (Eds.), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015) 200. For a discussion on the influence of international instruments and the case law of the Court of Human Rights in relation to Article 34 of the EU Charter, See A.  Crescenzi, ‘Social Security, Social Assistance and Health Care in the Charter of Fundamental Rights’, in G.  Palmisano (Ed.), Making the Charter of Fundamental Rights a Living Instrument (Brill 2015) 145–​164; R.C.A. White, ‘Article 34-​Social Security and Social Assistance’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 927–​951. R.C.A. White, ‘Article 34-​Social Security and Social Assistance’, in S.  Peers, T.  Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 948; N. Jaaskinen, ‘Fundamental Social Rights in the Charter-​Are They Rights? Are They Fundamental?’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014) 1711.

The EU legal framework on social security coordination

139

In Kamberaj, the Court of Justice used Article 34 of the EU Charter as an interpretative tool to determine whether housing assistance was among the ‘core benefits’ of the Long-​Term Residence Directive. It may be recalled that Mr Kamberaj, a third-​country national, was refused housing benefits by the Italian authorities and wanted to rely on the equal treatment provision of the Long-​Term Residence Directive. The equal treatment provision of the Long-​ Term Residence Directive can be limited to core benefits.653 Some examples of such core benefits can be found in a non-​exhaustive list in Recital 13 of the Long-​Term Residence Directive. In order to interpret whether housing assistance were to be included within the list of core benefits, the Court relied on paragraph 3 of Article 34 of the Charter.654 In that regard, the Court held that Article 11(4) of the Long-​Term Residence Directive must be interpreted as permitting the Member States to limit the equal treatment provision except with regard to social assistance or social protection benefits that enable individuals to meet their basic needs such as food, accommodation and health.655 Housing assistance was considered to fulfil the purpose of Article 34 of the Charter which rested on the fact that ‘the Union recognises and respects the right to social and housing assistance so as to ensure a decent existence for all those who lack sufficient resources’.656 In conclusion, the relevance of Article 34 of the EU Charter for this research is twofold. On the one hand, it is used as a standard for review of the implementation of EU law. For example, when the Member States implement an equal treatment provision of an EU Directive, such as Article 14 of the Blue Card Directive, they must do so with due regard to Article 34 of the EU Charter. On the other hand, the EU institutions when acting in the field of social security coordination with third countries should be guided by the principles found in Article 34 of the EU Charter. 4

Conclusion

This Chapter was aimed at discussing all the relevant EU legislative instruments for social security coordination with third countries. The relevant EU instruments could be classified in two categories: the EU unilateral measures (Regulation 1231/​2010 and the EU migration Directives) and the EU agreements 6 53 654 655 656

Article 11(4) of the Long-​Term Residence Directive. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para. 80. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para. 91. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233, para. 92.

140 

Chapter 2

with third countries. However, in this research, the relevant EU instruments were separated into two other categories. First, there are instruments, i.e. Regulation 1231/​2010 referring to Regulation 883/​2004 and its implementing Regulation 889/​2009, relevant in the context of mobility of third-​country nationals within the EU (intra-​EU mobility). Second, there are instruments, i.e. the EU agreements with third countries and the EU migration Directives, concerned with the mobility of third-​country nationals between third countries and EU Member States (external EU mobility). The dichotomy between situations of intra-​EU mobility v. external EU mobility is reflected in the social security coordination rules contained in the EU instruments. For third-​country nationals in a situation of intra-​EU mobility, the social security coordination rules contained in Regulation 1231/​2010 provide for a complete set of rules referring to the set of rules available for EU citizens in Regulation 883/​2004. Although there is no free movement of third-​country nationals within the EU compared to the free movement of EU citizens, the EU still provided a set of social security coordination rules for intra-​EU mobile third-​countries nationals comparable to the set of social security coordination rules for intra-​EU mobile EU citizens. Thus, for third-​country nationals in intra-​EU mobility’s situations, there is a uniform set of rules enshrined in ­Regulation 883/​2004. A uniform set of social security coordination rules is however not found for covering third-​country nationals in situations of external mobility. Two types of EU instruments are applicable to third-​country nationals in a situation of external mobility: the EU Directives on immigration status and the bilateral agreements concluded by the EU with a specific country such as the Euro-​Mediterranean Association Agreement with Algeria. As discussed in this Chapter, the EU migration Directives all contain a provision on equal treatment relevant for social security rights of third-​country nationals. However, the EU Directives differ in the type of benefits that can be excluded from equal treatment by the Member States when they implement the Directive. They also differ in the fact that some of them provide for the export of benefits while others do not. Furthermore, concerning the EU agreements with third countries, it was highlighted in the previous Section that three categories of third countries could be distinguish. There are different set of rules that apply to countries which could be considered as Member States of the EU for social security coordination (eea efta States and Switzerland), countries who have an agreement with the EU and that some provisions of this agreement have direct effect (San Marino, Turkey, Algeria, Tunisia and Morocco), and countries who have an agreement and the provisions in that agreement are only political commitments to adopt further social security coordination measures

The EU legal framework on social security coordination

141

(Egypt, Lebanon, Jordan, Israel, the Former Yugoslav Republic of Macedonia, Albania, Montenegro, Serbia, Bosnia and Herzegovina, Russia, Moldova and Ukraine) Consequently, it can be said that, at the EU level, there is no common EU ­approach to social security coordination with third countries. Finally, a last differentiation between the relevant EU instruments must be made. Regulation 1231/​2010, the EU migration Directive and the EU agreements with third-​countries (except the ones with eea efta States and ­Switzerland) are instruments relevant for the social security rights of third-​country nationals in the EU. They are not concerned with the social security rights of EU citizens in the third countries. They are not based on reciprocity. This element is important for the future of a common EU approach because securing the rights of EU citizens in third countries is as relevant as securing the rights of third country nationals in the EU. It can be concluded from this chapter that a common approach to social security coordination is much needed for two main reasons. On the one hand, a common approach will ensure legal clarity and certainty. The current EU instruments provide for different set of rules, sometimes applicable to the same third-​country national. It might be difficult for third-​country nationals and third-​country undertakings to grasp the extent of their rights and obligations from this patchwork of instruments. On the other hand, a common approach will permit to safeguard the social security rights of EU citizens in third ­countries.

­c hapter 3

Member States’ Bilateral Agreements on Social Security Coordination with Third Countries: a Comparative Analysis of the Bilateral Agreements between Belgium, the Netherlands and Germany with Respectively India, Turkey and the usa Historically, bilateral agreements concluded between States were the first instruments adopted for the purpose of securing migrants’ social security rights.1 The first bilateral agreement on social security can be traced back to 1827. It was an agreement between France and the Duchy of Parma on the payment of pensions.2 However, the adoption of bilateral agreements on social security coordination really took off in the 20th century.3 Before the First World War, most of the bilateral agreements were concerned with the principle of equal treatment in social assistance exclusively.4 Since the end of the Second World War, the majority of the bilateral agreements have a broader scope and ­content.5 Currently, agreements on social security coordination concluded between States are the most important instruments of social security coordination in terms of number. The amount of bilateral agreements between oecd States is 1 N G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 87. 2 G. Perrin, ‘Histoire du droit international de la sécurité sociale’ in A. Barjot (Ed.), La sécurité sociale, son histoire à travers les textes (Vol. v, Association pour l’étude de l’histoire de la sécurité sociale 1993) 16; G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 87. 3 B. Kahil-​Wolff & P-​Y. Greber, Sécurité sociale: aspects de droit national, international et européen (Dossier de droit européen n°14, Bruylant 2006) 196. 4 G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 87–​88. 5 G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 88.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_004

A Comparative Analysis of the Bilateral Agreements

143

high6 and the number is even higher for agreements concluded by the Member States of the European Union.7 However, worldwide, despite being the most common instrument for coordinating social security systems, only 23% of the total population of international migrants are covered by agreements on social security coordination.8 Even within the EU, the network of bilateral agreements between the Member States and third countries is far from being complete.9 For example, there is no bilateral agreement between the UK and India even though the largest population of Indian migrants in the EU lives in the UK.10 Albeit being variable in terms of content and scope, bilateral agreements on social security coordination share some common characteristics. They are all in a written form. They are concluded for an indefinite period of time. And they are all based on the principle of reciprocity.11 The principle of reciprocity is a concept of international law and diplomacy.12 Reciprocity means ‘the mutual concession of advantages or privileges for purposes of commercial or diplomatic relations’.13 In the context of social security coordination, the 6

7

8

9 10 11

12 13

R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social ­Protection & Labor 2016) 1. H. Verschueren considers that there are over 350 bilateral agreements between a Member State and a third country. A. Pascal counted the exact number of 428 bilateral agreements in total. See H. Verschueren, ‘Employment and Social Security Rights of Third-​Country Labour Migrants under EU Law: An Incomplete Patchwork of Legal Protection’ 18 European Journal of Migration and Law (2016), 404; A. Pascal, Union européenne et USA: protection sociale des travailleurs migrants (Bruylant 2016). R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social ­Protection & Labor 2016) 1. European Migration Network, ‘Synthesis Report-​Migrant access to social security and healthcare: policies and practices’ (European Migration Network Study 2014) 70. For an analysis of the situation of Indian migrants’ social security rights in the UK, see P.Melin, ‘Social security benefits of Indian migrants in Europe: loss or win situation in case of return?’ in S. Irudaya Rajan (Ed.), Indian Migration Report 2018 (Routledge 2018). Those three characteristics are identified by G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D.  Pieters & P.  Schoukens (Eds.), The Social Security Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 88. This research, although limited to 9 bilateral agreements, confirms that those three characteristics are all present. For a work dedicated on the reciprocity principle in international law, see the work of S.  Nasrolahi Fard, Reciprocity in International Law:  Its Impact and Function (Routledge Research in International Law, Routledge 2016). B. A. Garner (Ed.), Black’s Law Dictionary (Tenth Edition, Reuters 2014) 1462.

144 

Chapter 3

reciprocity principle has the consequence that States can only concede on elements that exist in their social security systems. For example, a State cannot include an unemployment benefit scheme in the scope of a bilateral agreement if that State does not have such as scheme. The reciprocity principle has the effect that bilateral social security coordination agreements are tailor-​made to correspond to the social security systems of the contracting States. As a result, this chapter will focus on particular bilateral agreements; i.e. the bilateral agreements that India, Turkey and the usa have concluded, each respectively, with Belgium, Germany and the Netherlands.14 Hence, in total, this Chapter analyses nine bilateral agreements using a comparative legal analysis method. This Chapter starts with the bilateral agreements between India and the three Member States. The reason for starting with the agreements concluded with India is that they are the most recently concluded bilateral agreements. The bilateral agreements concluded by the usa with Belgium, the Netherlands and Germany are then discussed. They were concluded in the 1980’s and have not been amended since then. As a result, they represent old-​generation bilateral agreements. Finally, the bilateral agreements concluded by Turkey with the Member States are analysed. They are the oldest bilateral agreements selected for the purpose of this research. However, most of those bilateral agreements have been renegotiated and amended throughout the years so they include the newest developments of the national social security systems. Additionally, the bilateral agreements concluded with Turkey cannot provide for less favourable provisions than Decision 3/​80 and the EU-​Turkey Association Agreement.15 The comparative legal analysis focuses on the personal and material scope of the bilateral agreements as well as on five fundamental elements of social security coordination; i.e. equal treatment, aggregation of periods of insurance, export of benefits, determination of the law applicable and administrative cooperation. Those five fundamental elements are largely recognised by stakeholders as being elements that reduce the risks faced by migrant workers regarding the maintenance of their social security rights.16 The risk of double 14 15 16

The scientific reasons behind the choices of those countries have been explained in the introductory chapter of this research. See Introduction Chapter, pp.11–​15. Article 39(5) of the Additional Protocol to the EU-​Turkey Association Agreement. ilo, Social Security Coordination for non-​EU States in South and Eastern Europe: a legal analysis (2012); missoc, MISSOC Analysis 2013/​2:  External Aspects of Social Security Coordination (2013); R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 22; B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010). Some authors have

A Comparative Analysis of the Bilateral Agreements

145

insurance or no insurance is secure by having a rule on the determination of the law applicable. The risk of discrimination is removed by a rule on equal treatment. Administrative hurdles are reduced by including a provision on administrative cooperation. The loss of rights acquired or in course of acquisition is prevented by provisions on aggregation of periods of insurance and export of benefits. Before the analysis of the bilateral agreements, it is interesting to discuss the context and the States’ motivations behind the conclusion of the agreements. Discussing the motivations that States might have for concluding agreements on social security is interesting for two reasons. First, the motivations of the States explain sometimes the content of the agreements. For example, an agreement that is thought in the context of enhancing investments focuses mostly on posted workers.17 Second, a common EU approach can only be proposed if the Member States have similar interests in concluding bilateral agreements with a third country. A contrario, if a Member State has no interest to conclude a bilateral agreement with a third country, that Member State will probably not participate in a common EU approach to social security coordination with that third country. In identifying possible motivations or interests for the Member States to conclude bilateral agreements with third countries, the work of B.  Spiegel from 2010 is extremely useful. Based on interviews conducted with the delegations of the Member States, B.  Spiegel identified 12 motivations.18 Those motivations are, for example, historical link with the third country, the globalisation context, the migration patterns, or the investment possibilities.19 This research does not intend to reproduce the work of B. Spiegel on identifying the motivations of the Member States but rather it uses his categories of

17

18 19

identified four fundamental elements of social security coordination, i.e. equal treatment, maintenance of rights acquired or in course of acquisition, rule on determining the law applicable, good administrative cooperation, and two techniques ensuring the due process of those principles, i.e. aggregation of periods of insurance and export of benefits. See, for example, B. Kahil-​Wolff & P-​Y. Greber, Sécurité sociale: aspects de droit national, international et européen (Dossier de droit européen n°14, Bruylant 2006) 193–​196. Such an example can be found in the Agreement between the Republic of India and the Federal Republic of Germany on social insurance (first agreement between India and Germany) which reflects the important economic relationship between the two countries. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 56–​60. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 56–​60.

146 

Chapter 3

identified motivations and puts them in the context of the bilateral agreements between India, usa and Turkey respectively with Belgium, Germany and the Netherlands.20 1

India’s Bilateral Social Security Agreements with Belgium, Germany and the Netherlands

1.1 Background of the Bilateral Agreements There are currently 12 bilateral agreements on social security in force between India and the Member States (Belgium 2006,21 Germany 200822 and 2011,23 France 2008,24 Luxembourg 2009,25 Netherlands 2009,26 Denmark 2010,27 Hungary 2010,28 Czech Republic 2010,29 Finland 2012,30 Sweden 2012,31 Austria 201332 and Portugal 2013).33, 34 The first bilateral agreement concluded between India and a Member State was the one with Belgium in 2006.35 It entered into force on the 1st September 2009. India signed a bilateral agreement with the Netherlands on 22nd October 2009, with entry into force on 1st December 2011.36 The situation with Germany was particular in the sense that India and Germany first signed an agreement in 2008 focused

20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36

Some of these motivations have been confirmed by further interviews with Member States’ delegations and additional research on the political and legislative context prior to the conclusion of the bilateral agreements with India. Entered into force on 1st September 2009. Entered into force on 1st October 2009. Entered into force on 1st May 2017. Entered into force on 1st July 2011. Entered into force on 1st June 2011. Entered into force on 1st December 2012. Entered into force on 1st May 2011. Entered into force on 1st April 2013. Entered into force on 1st September 2014. Entered into force on 1st August 2014. Entered into force on 1st August 2014. Entered into force on 1st July 2015. Entered into force on 8th May 2017. For a comparative legal analysis of those 12 bilateral agreements, See P. Melin, ‘A comparative legal analysis of the Member States’ social security agreements with India: towards a common EU approach?’, European Journal of Social Security (2018). Agreement on social security between the Kingdom of Belgium and the Republic of India. Belgian Law Gazette, 21 August 2009. Hereinafter referred as the ‘India-​Belgium ssa’. Agreement between the Republic of India and the Kingdom of the Netherlands, 22 October 2009. Hereinafter referred as the ‘India-​Netherlands ssa’.

A Comparative Analysis of the Bilateral Agreements

147

solely on posted workers37 and then concluded a comprehensive agreement in 2011.38 This comprehensive agreement has entered into force on 1st May 2017.39 The timing of the conclusion of the bilateral agreements with India, i.e. after 2006 for the signature and 2008 for the entry into force, is not a coincidence. B.  Spiegel mentioned that the Member States wanted to conclude bilateral agreements with India due to a change in Indian legislation.40 The change in the Indian legislation was related to the creation of a new category of worker, the ‘international worker’, to be subject to the Indian social security system.41 According to this change, workers coming from outside India to work in India for an establishment employing 20 or more persons42 were to contribute to the Employees’ Provident Fund Scheme. Hence, contributions paid by employers for Indian workers as well as by Indian employees were also to be paid for and by international workers.43 However, the difference between Indian workers and international workers was that there would be no ceiling of the salary concerning the contributions of international workers.44 Consequently, both the employee coming from outside India and the employer would have to pay contributions amounting to 12 per cent of the employee’s salary. The only way to be exempted from paying those contributions would be if India and the country of origin of the worker had concluded a bilateral agreement on social 37 38 39 40 41

42 43 44

Agreement between the Republic of India and the Federal Republic of Germany on Social Insurance, 8 October 2008. Agreement of 11 October 2011 between the Federal Republic of Germany and the Republic of India on Social Security, Bundesgesetzblatt Jahrgang 2012 Teil ii Nr.19, ausgegeben zu Bonn am 12 Juni 2012. Hereinafter referred as the ‘India-​Germany ssa’. Press release from the Ministry of External Affairs, Government of India, February 2017. Available at http://​www.mea.gov.in/​press-​releases.htm?dtl/​28098/​Agreement+ on+Social+Security+between+India+and+Germany, last accessed on 31 May 2019. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 57. Notification amending the Employees Provident Fund & Miscellaneous Provision Act 1952, Official Gazette, New Delhi, 1 October 2008, available at http://​www.epfindia.com/​ site_​docs/​PDFs/​Circulars/​Y2009-​2010/​notification_​schemes.pdf, last accessed on 31 May 2019. Section 1 of the Employees’ Provident Funds and Miscellaneous Provisions Act 1952. Section 6 of the Employees’ Provident Funds and Miscellaneous Provisions Act 1952 provides that both the employee and the employer need to pay contribution to the Fund. For Indian workers, the wage ceiling was set to 6500 RS per month (Section 11 of the Employee’s Pension Scheme 1995). See also, Employees’ Provident Fund Organisation (Ministry of Labour & Employment, Govt. Of India), Note on the Compliance in respect of International Workers, 25 May 2012.

148 

Chapter 3

security.45 Evidently, this element was a great push factor for Member States to conclude bilateral agreements with India. Another element that presumably motivated the Member States to conclude bilateral agreements with India is the potential for investments in both the Member States and India from the IT sector for example. Studies show that there are many Indian-​based IT companies established around the capitals of those Member States.46 Other sectors might also be concerned. For example, there are many economic links between Anvers/​Antwerp in Belgium and India in relation to the industry of diamonds.47 Linked to the potential for investments, there is also a great potential for labour migration between the EU and India. India is currently the second most populated country in the world, behind China, with 1.3 billion people. By 2024, the UN predicts that India will become the most populated country in the world and the UN expects India to be a net sender of more than 100 000 migrants annually.48 While it is not completely accurate to say that the Indian labour migration pattern to the EU is a high skilled migration,49 such a statement can be made for Belgium, the Netherlands and Germany.50 Indians

45

46 47 48

49

50

Notification amending the Employees Provident Fund & Miscellaneous Provision Act 1952, Official Gazette, New Delhi, 1 October 2008, available at http://​www.epfindia.com/​ site_​docs/​PDFs/​Circulars/​Y2009-​2010/​notification_​schemes.pdf, last accessed on 31 May 2019. See also, Employees’ Provident Fund Organisation (Ministry of Labour & Employment, Govt. Of India), Note on the Compliance in respect of International Workers, 25 May 2012. D. Mukherjee & R. Chanda, ‘Investment and Migration linkages between India and the EU’, CARIM-​India Research Report (16, 2012) 23. S. Cosemans & I. Gooderis, ‘Indian migration to Belgium’, CARIM-​India Research Report (45, 2013) 2. United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 1, 5 and 10. Available https://​esa.un.org/​unpd/​wpp/​Publications/​Files/​WPP2017_​ KeyFindings.pdf, last accessed on 31 May 2019. The Southern Member States such as Italy receive mainly low skilled Indian migrant workers. Whereas the Northern Member States tend to attract more high-​skilled Indian migrants. For a complete overview of the Indian migration pattern in Europe, See K. Lum, ‘Indian Diversities in Italy: Italian Case Study’, CARIM-​India Research Report (2, 2012); J. Gereke, ‘Highly-​Skilled Indian Migrants in Germany’, CARIM-​India Research Report (32, 2013); P. Fargues, K. Lum, ‘India-​EU Migration: A Relationship with Untapped Potential’, CARIM-​India Research Report (1, 2014); S.K. Sasikumar & R.  Thimothy, ‘Migration of Low Skilled Workers from India to the European Union’, CARIM-​India Research Report (15, 2012). This is of course a general picture as there is also Indian low skilled migration in those Member States; e.g. in the agricultural sector in Limburg (fruit picking) in Belgium.

A Comparative Analysis of the Bilateral Agreements

149

are the largest group of third-​country nationals who obtain a work permit51 in Belgium and more than half of the special permits for highly skilled workers52 were given to Indians.53 In the Netherlands, Indian migrants are the largest recipients of the high-​skilled working permits.54 A similar picture can be drawn in Germany where the Indian community is a community of professionals (i.e. nurses, doctors, engineers, academics, etc.).55 This community of professionals grew in 2000 with the introduction of the Green Card by the German authorities designed for the purpose of attracting high-​skilled workers. Indian workers represent one fifth of the third-​country workers who obtained a ‘Green Card’.56 EU citizens migrating to India are also mostly high skilled migrants.57 In conclusion, Belgium, Germany and the Netherlands shared the same type of motivations for concluding a bilateral agreement on social security coordination with India.

51 52 53 54 55 56 57

Work permit B. Either the Work permit B specifically for high-​skilled workers or the EU Blue Card. oecd, International Migration Outlook 2014 (oecd Publishing 2014) 238. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. oecd, International Migration Outlook 2014 (oecd Publishing 2014) 280. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. L.M. Singhvi et al. (eds), ‘Report of the High Level Committee on the Indian Diaspora’ (New Delhi, Ministry of External Affairs 2001) 151–​152. J. Apap, ‘Shaping Europe’s Migration Policy: New Regimes for the Employment of Third-​ Country Nationals: A Comparison of Strategies in Germany, Sweden, the Netherlands and the UK’. 4, European Journal of Migration and Law (2002) 317–​319. D. Mukherjee & R. Chanda, ‘Investment and Migration linkages between India and the EU’, CARIM-​India Research Report (16, 2012)18–​23.

Equal treatment Determination of the General rule: lex loci laboris law applicable Specific rule for transport staff Specific rule for seafarer Specific rule for consular and diplomatic staff Specific rule 60 months for posted Less than 60 months worker Possibility of extension

Material scope

Based on whether the person is or has been subject to the legislation Persons deriving rights Based on the Only nationals nationality Other persons added Invalidity Survivors Old-​Age Family Sickness Maternity Work accident and occupational diseases Unemployment x x x x x x x

x x x x x x x

x x x

x

x

x x x

x

x

India-​Belgium ssa India-​Netherlands ssa

Comparison of the member States’ social security agreements with India

Personal scope

table 2

150 

x x

x x x x x

x x x

x

x

India-​Germany ssa

newgenrtpdf

Chapter 3

Aggregation of periods General provisions of insurance Provisions specific per country/​specific per benefit Export of benefits Possibility to export if residing in the other Contracting State Possibility to export if residing in a third country Administrative Administrative arrangement concluded cooperation Administrative cooperation free of charge Equal treatment for the exemption of stamps, fees, and authentication of documents Equal status of applications Data protection Dispute resolution x x x

x x x x

x x

x x

x x x

x

x x x

x x x x

x x

A Comparative Analysis of the Bilateral Agreements151

152 

Chapter 3

Comparison of the Member States’ Social Security Agreements with India 1.2.1 Personal and Material Scope of the Agreements The three agreements are very similar in terms of both material and personal scope. In fact, with regard to the personal scope, the wording of the three ssa s is identical. The requirement for falling within the scope is whether a person is or has been subject to the legislation of either of the Contracting States. Also, persons deriving rights from the person subject to the legislation of either the Contracting States are covered by the agreements.58 Those persons deriving rights are to be understood as family members. Concerning the personal scope of the agreements, it is important to realise that none of them are based on nationality requirements. They include persons on the basis of their subjection to the legislation of either of the Contracting State. Through the subjection to the legislation of either of the Contracting State as the connecting factor for falling within the scope of the agreements instead of nationality requirements, the ssa s comply with the Gottardo ruling of the Court of Justice.59 In the Gottardo judgment, the Court of Justice held that bilateral agreements concluded by Member States with third countries should be applied in the light of the fundamental principle of equal treatment of EU citizens. This implies that any Member State must treat all EU citizens equally to its nationals when applying a ssa concluded with a third country. One way to avoid the discrimination of EU citizens in the application of the ssa s is to have a personal scope based on the subjection to the legislation of either the Contracting States. In relation to the material scope, all three ssa  s refer to the specific legislation of the Member States and of India.60 Hence, the scope is not defined through references to benefits but rather through references to the national legislation covering those benefits. In essence, the legislation referred to in the ssa  s concerns pension rights (old-​age, survivors’, and invalidity benefits). This statement could come as a surprise if one reads the material scope provision of the India-​Belgium and the India-​Netherlands ssa  s where ‘social security rights’61 at large are also 1.2

58 59 60 61

Article 3 of the India-​Belgium ssa; Article 3of the India-​Netherlands ssa; Article 3 of the India-​Germany ssa. Case C-​55/​00 Elide Gottardo v Istituto nazionale della previdenza sociale (inps), ECLI:ECLI:EU:C:2002:16. This case has been more extensively discussed in the previous Chapter, pp.56–​58. Article 2 of the India-​Belgium ssa; Article 2 of the India-​Netherlands ssa; Article 2 of the India-​Germany ssa. The India-​Netherlands ssa is precise on the social security rights it intends to cover: sickness (including the scheme concerning the liability of the employer and benefit in kind), maternity, unemployment, children’s allowances.

A Comparative Analysis of the Bilateral Agreements

153

mentioned. However, those provisions must be read in the context of the whole agreement. In doing so, one realises that ‘social security rights’ are only taken into account for the purpose of the rule determining the law applicable. Hence, ‘social security rights’ are only mentioned for the purpose of ensuring that migrant workers and their family members are not subject to contributions in two Contracting States at the same time. Apart from that, the rest of the ssa  s concern exclusively pension rights. Lastly, in Belgium, the Netherlands and Germany, the legislation covered by the agreements is for both employed and self-​employed persons. In India, however, the legislation covered by the three bilateral agreements is restricted to employed persons. This can be explained by the fact that India does not have a social security legislation covering self-​employed persons. 1.2.2 Determination of the Applicable Law All three ssa s have a provision determining the applicable law. In all three ssa s, there is a general rule for all workers and specific rules for workers who are in particular working situations. The general rule is the lex loci laboris.62 This means that the law applicable to the social security situation of the person is the law of the country where that person works. The specific rules concern the situation of members of the travelling or flying personnel, seamen, members of diplomatic missions and posted workers.63 First, in the international transport services, members of the travelling or flying personnel of an enterprise, which has its registered office in the territory of a Contracting State, remain subject to the legislation of that Contracting State.64 For example, a steward of Lufthansa remains subject to the German legislation on social security when that steward is at New Delhi airport.65 Second, seamen also benefit from an exemption to the lex loci laboris. A worker employed on board a ship that flies the flag of a Contracting State remains subject to the legislation of the State where he has his residence.66 The India-​Netherlands ssa does not provide for a specific rule for seamen but 62 63

64 65 66

Article 7(a) of the India-​Belgium ssa; Article 6(a) of the India-​Netherlands ssa; Article 6(1) of the India-​Germany ssa. In addition, the three agreements provide for the possibility for Contracting States to agree to add categories of workers that will be exempted by the general rule of lex loci laboris. Article 10 of the India-​Belgium ssa; Article 9 of the India-​Germany ssa; Article 9 of the India-​Netherlands ssa. Article 7(b) of the India-​Belgium ssa; Article 6(b) of the India-​Netherlands ssa; Article 6(2) of the India-​Germany ssa. The same examples can be used in the India-​Netherlands and India-​Belgium ssa s’ context. Article 7(c) of the India-​Belgium ssa; Article 6(3) of the India-​Germany ssa.

154 

Chapter 3

rather states that, in the case of double-​insurance or no insurance, the Contracting States should cooperate to solve the situation.67 Third, civil servants, diplomatic and consular staffs are subject to the legislation of the Contracting State whose administration employs them.68 The India-​Belgium and India-​Netherlands ssa s provide that the same rule applies for the family members of the civil servants, diplomatic and consular staffs.69 Only the India-​Netherlands ssa adds that the family members will not benefit from that rule if they themselves pursue a professional activity in the receiving country.70 Those civil servants and diplomatic staffs are in fact considered to be still resident of the Contracting State who employs them even though they are physically in the other Contracting State.71 The India-​Germany ssa is different in regard to the situation of diplomatic staff as it only refers to the fact that the ssa should not affect the Vienna Convention on Diplomatic Relations of 18 April 1961 or the Vienna Convention on Consular Relations of 24 April 1963.72 The Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations both provide that the diplomatic and consular staff shall be exempted from being subject to the social security legislation of the receiving State provided that the legislation of the sending State applies.73 Fourthly and lastly, posted workers are also exempted from the lex loci labori rule. The rules for posted workers are very important for the Contracting States.74 They provide that the person who is employed by a company in one of 67 68 69 70 71 72 73 74

Article 6(c) of the India-​Netherlands ssa. Article 9 of the India-​Belgium ssa; Article 8 of the India-​Netherlands ssa. Article 9 of the India-​Belgium ssa; Article 8 of the India-​Netherlands ssa. Article 8(2) of the India-​Netherlands ssa. Concerning that matter, the India-​Netherlands ssa mentions specifically that a person who is subject to the legislation of one of the Contracting State is to be considered as resident in that Contracting State. Article 10 of the India-​Netherlands ssa. Article 8 of the India-​Germany ssa. Article 33 of the Vienna Convention on Diplomatic Relations and Article 48 of the Vienna Convention on Consular Relations. The European Migration Network conducted a big study on the access of third country nationals to social security benefits in every Member States of the EU. This study analysed the bilateral agreements concluded by Member States with third countries. One of their finding was that most bilateral agreements contain a provision that permits the migrant worker to remain subject to the legislation of his country of origin. European Migration Network, ‘Synthesis Report-​Migrant access to social security and healthcare: policies and practices’ (European Migration Network Study 2014). In addition, the work of A. Pascal is rather exhaustive in that matter. She compared, without going into details however, 428 bilateral conventions concluded by Member States with third countries. The study reveals that the rule on posted workers is contained in 80% of the bilateral conventions

A Comparative Analysis of the Bilateral Agreements

155

the Contracting States will remain subject to the legislation of that State even though he moves to work in the other Contracting State.75 The same rule will apply to his family members provided that they do not exercise professional activities themselves.76 For example, an Indian worker is sent by an Indian IT company in Belgium for a work mission. He will remain subject to the Indian social security legislation even though they will be residing in Belgium. His family will remain subject to the Indian legislation as long as they do not take up employment in Belgium themselves. The rules on posted workers are identical in the India-​Belgium, India-​Netherlands and India-​Germany ssa s. The only nuance between the agreements is the duration for which the posted worker continues to be subject to the legislation of his home country. In the India-​Belgium and in the India-​Netherlands ssa s, it is up until 60 months.77 In the India-​Germany ssa, the period is of 48 months78 but this period can be extended for a maximum of 12 extra months if the competent authorities allow it.79 Similarly, in the India-​Belgium and the India-​Netherlands ssa s, the period can be extended if the Contracting States agree.80 However, the maximum extension of the period is not provided in those agreements. This lack of indication regarding the extension of the period should not be interpreted as allowing an indefinite period of exemption for posted workers. Rather, that period of extension must be seen in the context of the administrative practices of the Contracting States. For example, in Belgium, the National Administration of Social Security’s practices show that it only allows for a maximum of 5 years (60months) of exemption of contributions for posted workers.81 Hence, it means that the nuance in the texts of the different agreements concerning the maximum period of exemption from contributions (48+12 months for the India-​Germany ssa and 60  months for India-​Belgium ssa) will not exist in practical terms.

75 76 77 78 79 80 81

concluded by the Member States. A. Pascal, Union européenne et USA: protection sociale des travailleurs migrants (Bruylant 2016) 93. Article 8 of the India-​Belgium ssa; Article 7 of the India-​Netherlands ssa; Article 7 of the India-​Germany ssa. Article 8(1) of the India-​Belgium ssa; Article 7(1) of the India-​Netherlands ssa. The family members are not mentioned in the India-​Germany ssa. Article 8(1) of the India-​Belgium ssa; Article 7(1) of the India-​Netherlands ssa. Article 7(1) of the India-​Germany ssa. Article 7(2) of the India-​Germany ssa. Article 8(2) of the India-​Belgium ssa; Article 7(2) of the India-​Netherlands ssa. N. Mussche, V. Corluy & I. Marx, ‘Migrant Access to Social Security-​policy and practice in Belgium’, (European Migration Network Study 2013) 62.

156 

Chapter 3

Also, the exemption of lex loci laboris for posted workers in all the ssa s applies in cases where the worker is sent from one of the Contracting States to a third country and then goes to the other Contracting State.82 For example, if an IT Indian worker is sent by his company based in India to accomplish a work mission first in Hungary and then is sent to Belgium, the working period accomplished in Hungary will be taken into account for the exemption of 60 months to pay contributions to the Belgian social security system. The procedure for a posted worker to remain subject to the legislation of the country from where he was previously working is the same for all three ssa s. The competent authority must deliver a certificate stating that the posted worker remains subject to its legislation and until which date.83 The original copy of the certificate must be kept by the worker in order to prove his situation in the receiving country.84 A  copy of that certificate is sent to the competent authority of the Contracting State where the worker is posted.85 In addition, the Administrative Arrangement provides for the constant exchange of statistical data between the competent authorities concerning the issuance of the certificates of coverage.86 1.2.3 Equal Treatment All three agreements contain a provision on equal treatment worded identically.87 The presence of such a provision should however be contextualised. In fact, equal treatment is provided for persons covered by the agreement in the application of the legislation of the Contracting State where they ordinarily reside. If one takes the example of Belgium, the equal treatment provision does not really have an added value for Indians working and residing legally in Belgium as the Belgian social security system is based on work and contributions and therefore is open to everyone, migrant or not.88 Similarly, the general 82 83 84 85 86 87 88

Article 8(3) of the India-​Belgium ssa; Article 7(3) of the India-​Netherlands ssa; Article 7(6) of the India-​Germany ssa. Article 4(1) of the India-​Belgium administrative arrangement; Article 4 of the India-​ Germany administrative arrangement; Article 3 of the India-​Netherlands administrative arrangement. Article 4(3) of the India-​Belgium administrative arrangement. Article 4(4) of the India-​Belgium administrative arrangement. Article 8 of the India-​Belgium administrative arrangement. Article 4 of the India-​Belgium ssa; Article 4 of the India-​Netherlands ssa; Article 4 of the India-​Germany ssa. N. Mussche, V. Corluy & I. Marx, ‘Migrant Access to Social Security-​policy and practice in Belgium’, (European Migration Network Study 2013), 62.

A Comparative Analysis of the Bilateral Agreements

157

German law provides for equal treatment.89 Hence, for situations contained in the Member States, the inclusion of provisions on equal treatment in bilateral agreements are unnecessary. However, the inclusion of an equal treatment provision might be important for persons whose situation is subject to Indian legislation. 1.2.4 Export of Benefits Concerning the provision on exports of benefits, the India-​Belgium and the India-​Netherlands ssa s are again worded identically.90 They provide for two things. Firstly, they provide for equal treatment in the export of benefits. Hence, for example, they provide that Indian workers shall be able to export benefits in the same conditions as Dutch workers91 when they decide to go to reside in a third country.92 Equally, Dutch workers93 should be able to export benefits from India in the same conditions as Indian workers.94 The benefits should be paid directly to the beneficiary.95 As any equal treatment provision, the real impact of these two paragraphs for migrant workers will depend largely on how much the nationals of the Contracting States are able to export. The India-​Netherlands ssa has been amended in order to include the ‘country of residence principle’ to the agreement.96 The ‘country of residence principle’ comes from a change in the Dutch legislation on child benefits, on survivor’s pension and on disability benefits made in 2011.97 According to the new Dutch legislation, the export of child benefits and means-​tested child allowances, 89 90 91 92 93 94 95 96

97

A. Müller, M.  M. Mayer & N.  Bauer, ‘Social Security for Third Country Nationals in Germany. Study by the German National Contact Point for the European Migration Network (EMN)’, Working Paper 57 (Federal Office for Migration and Refugees 2014) 38. With one exception that is addressed further below in this paragraph. Here the example could be replaced by the words ‘Belgian workers’. Article 5(2) of the India-​Belgium ssa; Article 5(3) of the India-​Netherlands ssa. Here the example could be replaced by the words ‘Belgian workers’. Article 5(3) of the India-​Belgium ssa; Article 5(3) of the India-​Netherlands ssa. Article 6 of the administrative arrangement for the implementation of the India-​ Netherlands ssa. The same applies in the India-​Belgium context, Article 7 of the administrative arrangement for the implementation of the India-​Belgium ssa. On the 22nd June 2017, the Indian government has approved the amendment proposed by the Netherlands to the India-​Netherlands ssa. See, Press Information Bureau, Government of India Cabinet, 22 June 2017, available at http://​pib.nic.in/​newsite/​ PrintRelease.aspx?relid=165848, last accessed on 31 May 2019. Wet van 29 maart 2012, houdende wijziging van enkele socialezekerheidswetten in verband met aanpassing van de hoogte van de uitkering aan het woonland (Wet woonlandbeginsel in de sociale zekerheid), Staatsblad van het Koninkrijk der Nederlanden 2012, 198.

158 

Chapter 3

survivors’ pensions and disability benefits are calculated on the cost of living of the country where the beneficiary resides. Since child benefits are not covered by the India-​Netherlands ssa, there was no need to change the agreement on that regard. However, concerning survivors’ pensions and disability benefits, the amendment to the India-​Netherlands ssa entails that the ‘country of residence principle’ applies to two specific cases: to an Indian worker who dies in the Netherlands and has his/​her spouse and children living in India, and to an Indian worker who becomes disabled while working in the Netherlands and returns to India.98 Secondly, the ssa s provide that the Contracting States shall not reduce or modify benefits acquired under its legislation based on the fact that the beneficiary is residing in the territory of the other Contracting State.99 Despite the same wording of the India-​Netherlands and India-​Belgium ssa s, the scope of the benefits that can be exported is different. The export possibility in the India-​Netherlands ssa concerns old-​age, survivors’ pensions and invalidity benefits100 except for benefits under the legislation concerning the Supplementary Benefits Act and the Disablement Assistance Act for Handicapped Young Persons.101 The India-​Belgium ssa only allows for the export of old-​age and survivor’s benefits, not for invalidity benefits. The restriction of exports to old-​age and survivor’s benefits constitutes a common practice in the bilateral agreements signed by Belgium.102 The India-​German ssa contains a comprehensive provision on the export of benefits.103 It provides that if there is a legislation of one of the Contracting States which requires residence within its territory in order to acquire or be paid benefits, that legislation should not apply to nationals of either a Contracting State and to their family members, provided that they are ordinarily residing in the territory of the other Contracting State.104 For example, if the Indian legislation provides that the payment of a pension is only 98

99 100 101 102 1 03 104

Protocol tot wijziging van het Verdrag inzake sociale zekerheid tussen het Koninkrijk der Nerderlanden en de Republiek India en het Administratief Akkoord daarbij, ondertekend te New Delhi op 22 oktober 2009; ‘s-​Gravenhage, 27 juni 2017, Staten-​Generaal, vergaderjaar 2017–​2018, 34 791, nr. 1. Article 5(1) of the India-​Belgium ssa; Article 5(1) of the India-​Netherlands ssa. Article 2 of the India-​Netherlands ssa. Article 5(2) of the India-​Netherlands ssa. Only rarely does Belgium allow for exportability of invalidity benefits. See N. Mussche, V. Corluy & I. Marx, ‘Migrant Access to Social Security-​policy and practice in Belgium’, (European Migration Network Study 2013) 62. Article 5 of the India-​Germany ssa. Article 5(1) of the India-​Germany ssa.

A Comparative Analysis of the Bilateral Agreements

159

available for pensioners residing in India, this legislation should not apply to German pensioners who reside ordinarily in Germany and who could benefit from pension rights if they were resident in India. In addition, Article 5(2) of the India-​Germany ssa provides for equal treatment with regard to the payment of benefits outside the territories of the Contracting States. Hence, if German legislation provides for the payment of some benefits for its own nationals when they reside abroad, it should provide equally for the payment of those benefits for Indian nationals when they reside outside Germany. The India-​Germany ssa further specifies that, irrespective of the labour market situation, invalidity pensions under German legislation should be paid to persons who ordinarily reside in India.105 It also ensures that several items of German legislation on specific benefits such as the Farmers’ Old Age Security are unaffected by the provision on equal treatment in respect of the export of benefits.106 1.2.5 Aggregation of Periods of Insurance The India-​Netherlands ssa does not contain a provision on the aggregation of periods of insurance whereas both the India-​Belgium ssa and the India-​ Germany ssa contain such a provision. For acquisition, retention or recovery of the right to old-​age and survivors’ benefits, the insurance periods completed pursuant to the legislation of one of the Contracting State are totalised with the periods completed pursuant to the legislation of the other Contracting State.107 The same provision applies also to Belgian invalidity benefits.108 When the legislation of a Contracting State subordinates the grant of old-​age or survivors’ benefits to periods of insurance in a specific occupation, only equivalent periods of insurance completed in the other Contracting State for the same occupation should be taken into account.109 In the India-​Belgium ssa, if the periods of insurance in a given occupation did not entitle the person to the said benefits, the insurance periods should however be taken into account for the general scheme of employed persons.110 The methods of calculation of

1 05 Article 5(3) of the India-​Germany ssa. 106 Article 5(4) to (6) of the India-​Germany ssa. 107 Article 11 (1) (for receiving benefits in Belgium) and Article 16 (2) (for receiving benefits in India) of the India-​Belgium ssa; Article 11(1) of the India-​Germany ssa (without distinction between Germany and India). 108 Article 13 of the India-​Belgium ssa. 109 Article 11(2) and Article 16(2) of the India-​ Belgium ssa; Article 11(4) of the India-​Germany ssa. 110 Article 11(3) and Article 16(3) of the India-​Belgium ssa.

160 

Chapter 3

benefits with or without aggregating the periods of insurance are provided in the ssa s.111 The India-​Germany ssa provides additionally a rule on the relationship between this agreement and other agreements, for example Regulation 883/​2004. It provides that, if a person has completed periods of insurance in one of the Contracting State to the India-​Germany ssa and in one third country where another agreement applies, the institution of the Contracting State should not take into account the periods completed under the other agreement unless otherwise provided.112 That being said, the institution of the Contracting State should take periods completed under the other agreement if it is an agreement with a third country with which both Contracting States have conducted a social security agreement or if it is Regulation 1408/​71 or Regulation 883/​ 2004 that applies in a country with which India has concluded a social security agreement.113 1.2.6 Administrative Cooperation All three ssa s include a provision on mutual assistance for the competent authorities. Those provisions make sure that the assistance accorded by the competent authorities to each other’s is provided free of charge.114 Also, the India-​Belgium ssa and the India-​Germany ssa provide that documents and certificates delivered by one competent authority are exempted from further certification by the competent authority of the other Contracting State115 and from taxes or stamp duties or any recording fees if it is the case for documents from the other Contracting State.116 Regarding the language of communication between the competent authorities, the India-​Germany and the India-​Belgium ssa s accept the official languages of both Contracting States for the purpose of communication between the competent authorities.117 The India-​Netherlands ssa opts for English as the language of reference for communication.118

1 11 112 113 114 1 15 116 117 118

Articles 12 and 17 of the India-​Belgium ssa; Articles 12 and 13 of the India-​Germany ssa. Article 11(2) of the India-​Germany ssa. Article 11(3) of the India-​Germany ssa. Article 20 of the India-​Belgium ssa, Article 17 of the India-​Netherlands ssa, Article 14 of the India-​Germany ssa. Article 20 (3) of the India-​Belgium ssa; Article 16 of the India-​Germany ssa. Article 20(2) of the India-​Belgium ssa; Article 16 of the India-​Germany ssa. Article 17 of the India-​German ssa, Article 20(4) of the India-​Belgium ssa. Article 18 of the India-​Netherlands ssa.

A Comparative Analysis of the Bilateral Agreements

161

All three ssa s contain a provision on data protection. The India-​Netherlands and the India-​Belgium ssa s are worded identically and refer to their national law on data protection as safeguards to be followed.119 The India-​Germany ssa is much more extensive on the issue of data protection. In addition to the reference to national laws of the Contracting States, the India-​Germany ssa provides for extra rules to be followed by the competent authorities of the Contracting States when dealing with personal data.120 The India-​Belgium ssa and the India-​Germany ssa contain a provision dealing with equal status of application or claims.121 This provision implies that when a social security beneficiary applies to a competent authority in one of the Contracting States whereas he should have done so in the other Contracting State, his application should be considered as if the application was made to the correct authority.122 The three ssa s also include the same worded provision regarding cooperation in the case of disputes. It insures that disputes should be solved by the competent authorities of the Contracting States.123 The India-​Germany ssa further specifies however that in the event of an unresolved dispute, a joint ad hoc commission set up by mutual agreement should settle the dispute.124 Finally, the Contracting States of all three ssa s have concluded administrative arrangements dealing with the practicalities that need to be completed by the different competent authorities and liaison agencies when faced with social security applications.125

1 19 Article 20 of the India-​Netherlands ssa, Article 22 of the India-​Belgium ssa. 120 Article 19 of the India-​Germany ssa. 121 Article 21 of the India-​Belgium ssa; Article 18 of the India-​Germany ssa. The India-​ Netherlands ssa does not contain it but its administrative arrangement has a reference to it (Article 4). 122 If it was presented within the specified time limit of the first State (Article 21 of the India-​Belgium ssa). 123 Article 24 of the India-​Belgium ssa, Article 19 of the India-​Netherlands ssa, Article 23(1) of the India-​Germany ssa. 124 Article 23(2) of the India-​Germany ssa. 125 Administrative arrangement concerning the implementation of the agreement between the Kingdom of Belgium and the Republic of India on social security. Belgian Law Gazette, 31 August 2009; Administrative Agreement for the implementation of the Agreement on Social Security between the Kingdom of the Netherlands and the Republic of India, Tractatenblad, 2009, 213; Administrative arrangement between the Government of the Republic of India and the Government of the Federal Republic of Germany for the implementation of the Agreement of 8 October 2008 on social insurance.

162  2

Chapter 3

The usa’s Bilateral Social Security Agreements with Belgium, Germany and the Netherlands

2.1 Background of the Bilateral Agreements The usa has concluded bilateral agreements on social security with 19 Member States.126 As for India and Turkey, only the bilateral agreements between the usa with respectively Belgium, the Netherlands and Germany are analysed in this research.127 The bilateral agreements between the usa and the Member States selected in this research dates from the 1980’s. The usa-​Germany ssa was the first of the agreements analysed in this research, and was signed on 7th of July 1976.128 It entered into force on 1st December 1979. The usa-​Belgium ssa was signed on 30th June 1984 and entered into force the next day, on 1st July 1984.129 Finally, the usa-​Netherlands ssa was signed on 8th December 1987 and entered into force on 1st November 1990.130

126 Italy (signed in 1973, entered into force on 1978), Germany (signed in 1976, entered into force on 1979), Belgium (signed in 1982, entered into force on 1984), United Kingdom (signed in 1984, entered into force on 1985), Sweden (signed in 1985, entered into force on 1987), Spain (signed in 1986, entered into force on 1988), France (signed in 1987, entered into force on 1988), Portugal (signed in 1988, entered into force on 1989), Netherlands (signed in 1987, entered into force on 1989), Austria (signed in 1990, entered into force on 1991), Finland (signed in 1991, entered into force on 1992), Ireland (signed in 1992, entered into force on 1993), Luxembourg (signed in 1992, entered into force on 1993), Greece (signed in 1993, entered into force on 1994), Denmark (signed in 2007, entered into force on 2008), Czech Republic (signed in 2007, entered into force on 2009) Poland (signed in 2008, entered force on 2009), Slovakia (signed in 2012, entered into force on 2014), Hungary (signed in 2015, entered into force on 2016). 127 The methodological considerations behind this selection of countries are explained in the Introductory Chapter, pp. 11–​15. 128 Agreement between the United States of America and the Federal Republic of Germany on Social Security signed at Washington January 7, 1976, entered into force December 1, 1979; as amended by a Supplementary Agreement signed at Washington October 2, 1986, entered into force March 1, 1988, and by a Second Supplementary Agreement signed at Bonn March 6, 1995, entered into force May 1, 1996. 129 Agreement between the United States of America and the Kingdom of Belgium on Social Security, signed at Washington February 19, 1982, entered into force July 1, 1984 as amended by an additional protocol signed at Brussels November 23, 1982, entered into force July 1, 1984. 130 Agreement between the United States of America and the Kingdom of the Netherlands on Social Security, signed at the Hague, December 8, 1987; as amended by a Protocol signed at the Hague December 7, 1989, both entered into force November 1, 1990. Second Protocol signed at the Hague August 30, 2001; entered into force May 1, 2003.

A Comparative Analysis of the Bilateral Agreements

163

B. Spiegel identified one main motivation in the context of the conclusion of the Member States bilateral agreements with the usa. That main motivation is that the Member States wanted to secure the rights of their own nationals who emigrated in the usa.131 Currently, the usa remains the first destination for Member States’ nationals.132 There is also usa migration to the EU. In that regard, usa nationals are among the largest recipients of high-​skilled permits in the Member States selected for this research.133 The motivation to secure the rights of the Member States’ own nationals is in fact the opposite of the motivation behind the conclusion of bilateral agreements with Turkey where the main driver was to secure the rights of Turkish migrants in the Member States and not necessarily the rights of Member States’ nationals in Turkey. Keeping in mind that the main motivation for the conclusion of the Member States’ bilateral agreements with usa was to secure the rights of their own nationals, it can be deduced that the bilateral agreements were probably negotiated due to the Member States’ demands. This probability is further reinforced if one looks at the number of bilateral agreements on social security ever concluded by the usa and with which countries of the world those bilateral agreements are concluded. There are in total 26 bilateral agreements on social security concluded by the usa,134 and 19 of these are concluded with EU Member States.

131 B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 56. 132 A. David & J-​N. Senne, ‘A descriptive analysis of immigration to and emigration from the EU. Where does the EU stand within OECD?’ OECD Social, Employment and Migration Working Papers (No.184, 2016) 35. 133 For the Netherlands:  oecd, International Migration Outlook 2014 (oecd Publishing 2014)  280. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019; For Belgium:  oecd, International Migration Outlook 2014, (oecd Publishing 2014) 238. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. However, it does not mean that US migration to the EU is to be characterised as a high-​skilled migration. In fact, A. Klekowski von Koppenfels who studied US migration to the EU and in particular to France, Germany and the UK showed that it is a very heterogenic group. See A. Klekowski von Koppenfels, Migrants or Expatriates? Americans in Europe (Palgrave Macmillan 2014). 134 Italy (1978); Germany (1979); Switzerland (1980); Belgium (1984); Norway (1984); Canada (1984); United Kingdom (1985); Sweden (1987); Spain (1988); France (1988); Portugal (1989); Netherlands (1990); Austria (1991); Finland (1992); Ireland (1993); Luxembourg (1993); Greece (1994); South Korea (2001); Chile (2001); Australia (2002); Japan (2005); Denmark (2008); Czech Republic (2009); Poland (2009); Slovakia (2014); Hungary (2016).

Equal treatment Determination of the General rule: lex loci laboris law applicable Specific rule for transport staff Specific rule for seamen Specific rule for consular and diplomatic staff

Material scope

Based on whether the person is or has been subject to the legislation Persons deriving rights Based on the Only nationals nationality Other persons added Invalidity Survivors Old-​Age Family Sickness Maternity Work accident and occupational diseases Unemployment

Comparison of the member States’ social security agreements with USA

Personal scope

table 3

x x x x x

x x x x

usa-​Belgium ssa

x x x x x

x x x

x

x

usa-​Netherlands ssa

x x x x x

x

x

usa-​Germany ssa

newgenrtpdf

164  Chapter 3

Specific rule 60 months for posted Less than 60 months worker Possibility of extension Aggregation of periods General provisions of insurance Provision for only some benefits Export of benefits Possibility to export if residing in the other Contracting State Possibility to export if residing in a third country Administrative Administrative arrangement concluded cooperation Administrative cooperation free of charge Equal treatment for the exemption of stamps, fees, and authentication of documents Equal status of applications Data protection Dispute resolution

x

x x x

x x x x x

x

x x x

x x x x x

x

x

x x x

x x x

x

A Comparative Analysis of the Bilateral Agreements165

166 

Chapter 3

Comparison of the Member States’ Social Security Agreements with USA 2.2.1 Personal and Material Scope of the Agreements With regard to the material scope of the ssa s, references are made to the national legislation. Hence, for usa legislation, the material scope of the three ssa s is restricted to old-​age, survivors and invalidity benefits.135 For the Member States legislation, the material coverage of the ssa s is more diverse. For example, the Belgian legislation on social security for employed persons, the social code for self-​employed persons, sickness insurance, unemployment insurance, family allowances, annual vacations, work accidents and occupational disease in the private sector are listed. However, the inclusion of those parts of legislation is restricted to Part iii of the ssa dealing with the rules on determining the law applicable.136 With regard to the material scope relevant for the rest of the usa-​Belgium ssa, only the Belgian legislation on old-​age and survivors pensions insurance for employed and self-​employed persons, as well as disability insurance for employed and self-​employed persons, sailors of the merchant marine and miners are covered.137 The German legislation covered by the ssa between the usa and Germany are restricted to old-​age pensions.138 More generally, in the case of the usa ssa s with Member States, Pascal noticed that the material scope of the agreements is heavily influenced by the US legislation.139 Concerning the personal scope, the usa-​Netherlands ssa covers all persons who are or have been subject to the laws of one or both Contracting States. It extends its coverage also to family members and survivors who derive rights from these persons.140 The usa-​Belgium ssa and the usa-​Germany ssa refer to other criteria to determine to whom the agreements apply. They apply to nationals of a Contracting State, to refugees and stateless persons residing in the territory of one Contracting State, to persons who derive rights from a national141 of one 2.2

135 Article 2(1) (a)  of the USA-​Netherlands ssa; Article 2(1)(b) of the usa-​Germany ssa; Article 2(1) (a) of the usa-​Belgium ssa. 136 Article 2(1) (b) (iii) to (x) of the usa-​Belgium ssa. 137 Article 2(1)(b) (i) and (ii) of the usa-​Belgium ssa. 138 Article 2(1)(a) of the usa-​Germany ssa lists wage earners’ pension insurance, salaried employees’ pension insurance, miners’ pension insurance, steelworkers’ supplementary pension insurance and farmers’ old-​age security. 139 A. Pascal, Union européenne et USA: protection sociale des travailleurs migrants (Bruylant 2016) 127. 140 Article 3 of usa-​Netherlands ssa. 141 In that regard, the usa-​Belgium ssa also specifies that it applies to ‘Family members and survivors of persons who have been subject to the laws of a Contracting State regardless of the latter persons’ nationality if the family members or survivors are nationals of a Contracting State, or stateless persons or refugees who reside in the territory of one Contracting State’, article 3(b) of the usa-​Belgium ssa.

A Comparative Analysis of the Bilateral Agreements

167

of the Contracting States.142 The usa-​Germany ssa adds also that it applies to ‘nationals of a State other than a Contracting State’.143 Due to this addition, the only ssa that is not in conformity with the Gottardo ruling is the usa-​Belgium ssa as it refers to the nationality of the person as a criteria for falling under the personal scope of the agreement. In addition, the three ssa  s apply to both employed and self-​employed persons.144 2.2.2 Determination of the Applicable Law Similar to the ssa s concluded with India, the ssa s concluded with the usa contain a general provision on the determination of the applicable law. The general provision is the lex loci laboris meaning that the competent State is the State where the migrant worker carries out his work.145 In addition to that general rule, the ssa s concluded with the usa provide for specific rules regarding the particular situation of some categories of workers. Those specific rules concern self-​employed persons, seamen, members of travelling crew or members of international air transport, diplomatic staffs, and posted workers. First, self-​employed persons would be subject to the legislation of the State of residence146 and not of the State where they carry out their work in the context of the usa-​Belgium ssa and the usa-​Netherlands ssa.147 Additionally, the usa-​Netherlands ssa provides for a rule regarding potential conflict on the concepts of employment and self-​employment.148 With regard to the usa-​ Germany ssa, the situation of self-​employed persons is not specified therefore the general rule of lex loci laboris applies. Second, for seamen, the rules differ in all three ssa  s. In the usa-​Netherlands ssa, there is a differentiation whether the person is employed in an American vessel or a non-​American vessel. If it is an American vessel and the person is covered under the laws of both Contracting States, only the US laws should apply 1 42 Article 3 of the usa-​Germany ssa; Article 3 of the usa-​Belgium ssa. 143 Article 3(e)of the usa-​Germany ssa. 144 A. Pascal, Union européenne et USA: protection sociale des travailleurs migrants (Bruylant 2016)149. 145 Article 5(1) of the usa-​Belgium ssa; Article 6 of the usa-​Netherlands ssa; Article 6(1) of the usa-​Germany ssa. 146 The concept of ‘residence’ is not defined in the ssa s with the usa. However, the ssa between the Netherlands and the usa mentions that, if a concept is not explicitly defined by the ssa, it should be defined by reference to the laws which are being applied (Article 1 (9)). In the context of the rule on conflict of laws, this might however be a circular argument. The law applicable is the law of the State of residence but residence is defined by the laws which are applicable. 147 Article 5(3) of the usa-​Belgium ssa; Article 7 of the usa-​Netherlands ssa; Article. 148 Article 11 of the usa-​Netherlands ssa.

168 

Chapter 3

to that person.149 On the contrary, if it is a non-​American vessel and the person is covered under the laws of both Contracting States, only Dutch law should apply.150 The usa-​Germany ssa provides a rule for all situations possible, i.e. if the person is a national of both Contracting States, if he is subject to the laws of only one State, etc.151 Finally, the usa-​Belgium ssa provision on the situation of seamen is drafted in the same manner as the corresponding provision in the ssa  s concluded with India. According to the usa-​Belgium ssa, the law applicable will be that of the Contracting State under which flag the vessel operates.152 Third, the situation of members of travelling personnel or international air transport is determined depending on where the headquarters of the enterprise that employs them are situated.153 The usa-​Germany ssa is a bit different in that regard as it deals with the situation of international air transport crew in the same provision as seamen. Therefore, the same specific rules as for seamen apply.154 Fourth, the three ssa s have the same rule concerning diplomatic staffs; they remain subject to the legislation of the Contracting State with which they are employed.155 Fifth, all three ssa s include a specific provision with regard to the situation of posted workers. They contain almost identically worded provisions. Essentially, the posted workers remain subject to the legislation of the Contracting State where that posted worker entered into the contract of employment with the sending employer. That exemption from the lex loci laboris is provided for 5 years in the three ssa s.156 This corresponds to the period of exemption contained in the ssa s concluded with India. The usa-​Netherlands ssa further specifies that the posted worker rule also applies to family members subject to the fact that they do not engage in any economic activities themselves.157 Finally, all ssa s include the possibility for the Contracting States to agree on additional categories of persons for whom exemption to the lex loci laboris rule can be granted.158 1 49 150 151 152 153 154 155

Article 10(1)(a) of the usa-​Netherlands ssa. Article 10(1)(b) of the usa-​Netherlands ssa. Article 6(3) of the usa-​Germany ssa. Article 5(2) of the usa-​Belgium ssa. Article 6(4) of the usa-​Belgium ssa; Article 10(2) of the usa-​Netherlands ssa. Article 6(3) of the usa-​Germany ssa. Article 7 of the usa-​Belgium ssa; Article 12 of the usa-​Netherlands ssa; Article 6(4) of the usa-​Germany ssa. 156 Article 6(1) of the usa-​Belgium ssa; Article 9(1) of the usa-​Netherlands ssa; Article 6(2) of the usa-​Germany ssa. 1 57 Article 9(3) of the usa-​Netherlands ssa. 158 Article 8 of the usa-​Belgium ssa; Article 14 of the usa-​Netherlands ssa; Article 6(5) of the usa-​Germany ssa.

A Comparative Analysis of the Bilateral Agreements

169

2.2.3 Equal Treatment All three ssa s contain the same provision on equal treatment. They provide that persons covered by the ssa s,159 residing in the territory of one of the Contracting States shall be equated to nationals of that Contracting State.160 The usa-​Netherlands ssa specifies that equal treatment does not apply with regard to US law on compulsory coverage.161 The usa-​Germany ssa adds that the equal treatment provision also applies in cases of granting cash benefits and benefits-​in-​kind when the person is residing outside the territory of the Contracting States.162 2.2.4 Export of Benefits There is limited reference to the export of benefits. Rather, the ssa s contain a provision on non-​discrimination on the basis of residence requirements. Those provisions entail that the law of a Contracting State restricting the payment of benefits solely on the basis that the person resides outside or is absent from the territory of that Contracting State should not be applicable when that person is residing in the other Contracting State.163 Hence, there is a possibility to export benefits to the other Contracting State but there is no mention of a possibility to export benefits to a third country. 2.2.5 Aggregation of Periods of Insurance All three ssa s contain several provisions on the aggregation of periods of insurance. Those provisions permit to totalise periods of coverage. When the competent authorities of the Contracting States determine the eligibility of the person to be granted benefits, they take into account periods of coverage completed in the other Contracting State. The method for calculation of the periods of coverage is sometimes included in the ssa itself164 or in the Administrative Agreement attached to the ssa.165 Additionally, to those provisions 159 Those who are or have been subject to the legislation of one of the Contracting State and, in the case of the ssa with Belgium and with Germany, who are nationals of one of the Contracting State. The provisions on the personal scope of the ssa s have been explained previously, on pp. 157–​158. 160 Article 4(1) of the usa-​Belgium ssa; Article 4(1) of the usa-​Netherlands ssa; Article 4(1) of the usa-​Germany ssa. 161 Article 4(2) of the usa-​Netherlands ssa. 162 Article 4(2) of the usa-​Germany ssa. 163 Article 5 of the usa-​Netherlands ssa; Article 5 of the usa-​Germany ssa. 164 See for example Article 10 of the usa-​Belgium ssa. 165 See for example Article 5(3) of the Administrative Agreement for the implementation of the usa-​Germany ssa.

170 

Chapter 3

on the general principle of aggregation of periods of insurance, all ssa s have specific rules for the usa166 and for each Member State.167 This was necessary in order to address the differences in the social security systems of the Contracting States. 2.2.6 Administrative Cooperation The provisions on administrative cooperation are quite standard in the sense that they are very similarly worded as in any other ssa s analysed in this research. They ensure that the Contracting States communicate relevant changes made in their legislation,168 that they conclude administrative agreements for the implementation of the ssa s169 which they all have realised,170 that they provide for administrative assistance free of charge,171 that the language of communication is either official languages of the Contracting States.172 Additionally, the three ssa s ensure reciprocity in the submission of documents. If a Contracting State exempt its documents from taxes and charges, then it must also exempt documents coming from the other Contracting State.173 The three ssa scontain provisions concerning the equal status of application made by the beneficiary. The provisions permit that, in case the application or other documents were submitted to the wrong Contracting State, the application is to be considered as rightly made in the correct Contracting State.174 Finally, there is a provision ­dealing  with the resolution of disputes. The first step is to solve the dispute by a­ greement between the two Contracting States. Then, 166 Article 9 of the usa-​Germany ssa; Article 11 of the usa-​Belgium ssa; Article 15 of the usa-​Netherlands ssa. 167 Articles 16, 17 and 18 of the usa-​Netherlands ssa; Article 8 of the usa-​Germany ssa; Article 12 of the usa-​Belgium ssa. 168 Article 13 of the usa-​Belgium ssa; Article 19 of the usa-​Netherlands ssa; Article 10 of the usa-​Germany ssa. 169 Article 16(1) of the usa-​Germany ssa; Article 19 of the usa-​Netherlands ssa; Article 13 of the usa-​Belgium ssa. 170 Administrative Agreement for the Implementation of the Agreement between the United States of America and the Kingdom of Belgium on Social Security; Administrative Arrangement for the Implementation of the Agreement between the United States of America and the Kingdom of the Netherlands on Social Security. 171 Article 20 of the usa-​Netherlands ssa; Article 14 of the usa-​Belgium ssa; Article 10 of the usa-​Germany ssa. 172 Article 16 of the usa-​Belgium ssa; Article 24 of the usa-​Netherlands; Article 13 of the usa-​Germany ssa. 173 Article 23 of the usa-​Netherlands ssa; Article 12 of the usa-​Germany ssa; Article 15 of the usa-​Belgium ssa. 174 Article 17 of the usa-​Belgium ssa; Article 21 of the usa-​Netherlands ssa; Article 14 of the usa-​Germany ssa.

A Comparative Analysis of the Bilateral Agreements

171

if no agreement can be found, the d­ ispute should be brought in front of an arbitration tribunal whose ­procedures and composition is decided by the Contracting States.175 3

Turkey’s Bilateral Social Security Agreements with Belgium, Germany and the Netherlands

3.1 Background of the Bilateral Agreements Turkey has concluded bilateral agreements on social security with 15 Member States (UK 1959,176 Germany 1964,177 Belgium 1966,178 the Netherlands 1966,179 Austria 1966,180 France 1972,181 Denmark 1976,182 Sweden 1978,183 Romania 1999,184 Czech Republic 2001,185 Luxembourg 2004,186 Croatia 2006,187 Slovakia 2007,188 and Italy 2012).189 The bilateral agreements on social security coordination concluded by Turkey with Belgium, Germany and the Netherlands were all concluded during a period of labour recruitment in the 1960’s in those Member States. In 1964, Turkey and Germany signed an agreement on social security coordination190 which can be considered as part of the recruitment policy.191 In 1966, Turkey also signed agreements

175 Article 19 of the usa-​Germany ssa; Article 26 of the usa-​Netherlands ssa; Article 20 of the usa-​Belgium ssa. 176 Entered into force on 1st June 1961. 177 Entered into force on 1st November 1965. 178 Entered into force on 1st May 1968. 179 Entered into force on 1st February 1968. 180 Entered into force on 1st October 1969. 181 Entered into force on 1st August 1973. 182 Entered into force on 1st February 1978. 183 Entered into force on 1st May 1981. 184 Entered into force on 1st March 2003. 185 Entered into force on 1st January 2005. 186 Entered into force on 1st June 2006. 187 Entered into force on 1st June 2012. 188 Entered into force on 1st July 2013. 189 Entered into force on 1st August 2015. 190 Gesetz zu dem Abkommen vom 30 April 1964 zwischen der Bundesrepublik Deutschland und der Republik Türkei über Soziale Sicherheit, 13.09.1965, Bundersgesetzblatt, Teil ii, Z1998A, p.1169. The Turkey-​German agreement has been amended in 1969, 1974 and 1984. 191 R. Holzmann, M.  Fuchs, S.  Paçaci Elitok, P.  Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 23.

172 

Chapter 3

with Belgium192 and the Netherlands.193 The Turkey-​Belgium agreement has been repealed and replaced by a new one signed in 2014 and entered into force on 3rd April 2017.194 Here a word on an institutional change in the Belgian social security system should be mentioned as it had an impact on the entry into force of the Turkey-​Belgium ssa. Since 1st July 2014, family benefits in Belgium have been transferred from the Federal to the Community level.195, 196 This entails that any bilateral agreement that covers family benefits would need to be agreed by the Flemish-​speaking Community, the German-​speaking Community, the Walloon Region, and the Common Community Commission (for the Brussels Region). Since the Turkey-​Belgium ssa covers family benefits, it was ratified by all those institutions in Belgium before entering into force on 3rd April 2017. In the 1960’s, the main motivation for the Member States for concluding those bilateral agreements was to attract labour migrants.197 This motivation met with success.198 Germany was and still is the largest recipient of Turkish migrants.199 Turkish migrants are also the most represented population from a third country

192 Convention générale sur la sécurité sociale entre le Royaume de Belgique et la République de Turquie, entered into force on the 1 May 1968. 193 Convention between the Kingdom of the Netherlands and the Republic of Turkey on Social Security, entered into force on 1 February 1968. The Turkey-​Netherlands agreement has been amended several times in 1972, 2000 and 2009. 194 Convention sur la sécurité sociale entre le Gouvernement de la République de Turquie et le Gouvernement du Royaume de Belgique, signed on 11 April 2014, entered into force on 3 April 2017. 195 Loi spéciale du 6 janvier 2014 relative à la sixième réforme de l’État, M.B., 31 January 2014, Article 12 and 55. 196 The French-​speaking Community has then decided to transfer the competence to the Walloon Region. Loi spéciale du 6 janvier 2014 relative à la sixième réforme de l’Etat, M.B., 31 January 2014, Article 5, para.1, iv; Décret spécial du 3 avril 2014 relatif aux compétences de la Communauté française dont l’exercice est transféré à la Région wallonne et à la Commission communautaire française, M.B., 25 June 2014, Article 3, 8e. 197 B. Spiegel classifies this motivation as ‘movement of labour’. B.  Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 56. 198 For example, in the Netherlands, in the year of conclusion of the bilateral agreement on social security in 1966, there were 6600 Turks. See H.  Nicolaas & A.  Sprangers, ‘Internationale migratie. Nederland in een Europees context’ in F. van Tubergen & I. van Maas (Eds.), Allochtonen in Nederland in internationaal perspectief (Amsterdam University Press 2006) 20. 199 J. Jurgens, ‘The legacies of labor recruitment:  the guest worker and green card programs in the Federal Republic of Germany.’ 29 Policy and Society (2010) 348; Federal Statistics Office from Germany. Available at https://​ www.destatis.de/​EN/​FactsFigures/​InFocus/​Population/​Foreigners.html, last accessed on

A Comparative Analysis of the Bilateral Agreements

173

in the Netherlands.200 Whereas Turkish migrants started to come to Germany, Belgium and the Netherlands during the guest worker policy, in the 1970’s they came via the route of family reunification policies.201 Currently, the migration balance in Germany is negative; meaning that the amount of Turkish migrants returning to Turkey is larger than the amount of Turkish migrating to Germany.202 However, it is not accurate to consider that the majority of Turkish migrants who came to Germany for work will then return to Turkey for their pensions. In fact, most Turkish pensioners commute between Germany and Turkey.203 In that context, the question of the export of pension rights or healthcare benefits for example is even more relevant when there are shifts in the migration patterns. Compared to India or the usa, Turkey is a particular third country in the sense that the EU and Turkey adopted Decision 3/​80 on social security coordination, in the context of the Ankara Association Agreement.204 The content of Decision 3/​80 has already been discussed in Chapter 2.205 However, it is important for the purpose of this chapter to recall that Decision 3/​80 is drafted in such a way that it requires further implementation by the Parties to the Ankara Agreement. Currently, there is still no implementation of Decision 3/​80.206

200 201

202 203

204 2 05 206

31 May 2019. See also Eurostat’s database available at: http://​ec.europa.eu/​eurostat/​tgm/​ table.do?tab=table&init=1&language=fr&pcode=tps00176&plugin=1, last accessed on 31 May 2019. 396 000 on 1st January 2014. oecd, International Migration Outlook 2014 (oecd Publishing 2014) 280. Available at http://​dx.doi.org/​10.1787/​migr_​outlook-​2014-​en, last accessed on 31 May 2019. C. Timmerman, ‘Gender Dynamics in the Context of Turkish Marriage Migration:  The Case of Belgium’, in R. Erzan & K. Kirisci (eds), Turkish Immigrants in the European Union. Determinants of Immigration and Integration (Routledge 2008)  122–​123; R.  Euwals, J. Dagevos, M. Gijsberts & H. Roodenburg, ‘Citizenship and Labor Market Position: Turkish Immigrants in Germany and the Netherlands’. 44, 3 International Migration Review (2010) 518. Federal Statistics Office from Germany. Available at https://​www.destatis.de/​EN/​ FactsFigures/​InFocus/​Population/​Foreigners.html, last accessed on 31 May 2019. R. Holzmann, M.  Fuchs, S.  Paçaci Elitok, P.  Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 13. Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 [1977] OJ L 361/​1. See Chapter 2, pp.79–​84. P. Minderhoud considers that Regulation 859/​2003 and now Regulation 1231/​2010 could be considered as the implementing measures from the EU side. He however recognizes that measures on export of benefits are still missing. P. Minderhoud, ‘Social Security Rights under Decision No 3/​80 of the eec-​Turkey Association Council: Developments in the EU and in the Netherlands’ 18 European Journal of Social Security Law (2016) 270.

174 

Chapter 3

The latest publicly available documents from the meeting of the EU-​Turkey Association Council from May 2015 do not mention Decision 3/​80.207 Despite its lack of implementation, the Court of Justice has granted direct effect to the provisions relating to equal treatment (Article 3)208 and export of benefits (Article 6(1)).209 This means that apart from those provisions, Decision 3/​80 cannot be relied upon directly by individuals. Decision 3/​80 should not affect the rights and obligations arising from the Member States’ agreements with Turkey, in so far as these arrangements provide more favourable arrangements for Turkish nationals.210 This implies that the bilateral agreements of the Member States with Turkey should not go below what is provided for in Decision 3/​80. If a bilateral agreement of a Member State provides for less coverage, then the provisions of Decision 3/​ 80 that have direct effect can be relied upon by the individual. However, for the other provisions, the consequences for the Member States are less clear. Member States should in principle respect the rules adopted under Decision 3/​80 as minimum rules but whether failure by the Member States to respect it would be enforced by the European Commission under Article 258 and 260 tfeu is uncertain. Contrary to the bilateral agreements between Turkey and the Member States, Decision 3/​80 is not based on the reciprocity principle. In fact, Decision 3/​80 was drafted for the purpose of securing the social security rights of Turkish nationals in the EU. Therefore, it does not apply to EU citizens in Turkey. In that regard, it should be noted that the update of Decision 3/​80 is meant to be applied to both EU citizens and Turkish nationals.211 However, this Draft

207 Council of the EU Press Release IP/​299/​15, EU-​Turkey Association Council, available at http://​www.consilium.europa.eu/​en/​press/​press-​releases/​2015/​05/​18/​eu-​turkey-​ association-​council/​pdf, last accessed on 31 May 2019. EU-​Turkey Association Council Note UE-​TR 4805/​15, 53rd meeting of the EU-​Turkey Association Council, available at http://​data.consilium.europa.eu/​doc/​document/​ST-​4805-​2015-​INIT/​en/​pdf, last accessed on 31 May 2019. 208 Case C-​262/​96 Sürül, ECLI:EU:C:1999:228; Case C-​373/​02 Öztürk, ECLI:EU:C:2004:232. 209 Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346. 210 Article 39(5) of the Additional Protocol to the Association Agreement. 211 Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​19-​25.

A Comparative Analysis of the Bilateral Agreements

175

Decision on the update of Decision 3/​80 has not yet been adopted by the Association Council. Finally, it is also interesting to note that Turkey is a third country that is very active in providing social protection to its own citizens working and/​or residing abroad. Firstly, there is the possibility for Turkish citizens to credit their time spent abroad.212 When returning to Turkey, they can be granted social security benefits if they credit the time they spent abroad either working or as a member of the household of a working person.213 Additionally, Turkey has put in place a blue card system for its former nationals who acquired the nationality of another country where dual citizenship is not allowed and thereby had to abandon their Turkish citizenship. Those blue card holders have the possibility for periods of insurance for their work abroad to be credited for the calculation of their pension in Turkey.214 That being said, they have to pay contributions for those periods concerning their work abroad and have to re-​establish their residency in Turkey.215 Those measures are unilateral measures taken by Turkey concerning its own citizens or former citizens (blue card holders). They are not conditioned by the conclusion of a bilateral agreement with the country where those citizens work.

2 12 Law No. 3201, 08.05.1985, T.C. Resmi Gazette 1985. 213 R. Holzmann, M.  Fuchs, S.  Paçaci Elitok, P.  Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 20. 214 Law No. 29116, 09.11.2014, T.C. Resmi Gazette 2014. 215 R. Holzmann, M.  Fuchs, S.  Paçaci Elitok, P.  Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 21.

Equal treatment Determination of the law applicable

Material scope

General rule: lex loci laboris Specific rule for transport staff Specific rule for seamen Specific rule for consular and diplomatic staff

Based on whether the person is or has been subject to the legislation Persons deriving rights Based on nationality Only nationals Other persons added Invalidity Survivors Old-​Age Family Sickness Maternity Work accident and occupational diseases Unemployment x x x x x

x x x x x x x x x x x x x

x

x

x xb x x x x x

x

x x x x x

x x x x x x xe x

x x x x x x x x x x

xa

x x x xc xd xf x xg x

x

x

Turkey-​ Turkey-​ Decision Draft Netherlands Germany 3/​80 decision ssa ssa (update of Dec.3/​80)

x

Turkey-​ Belgium ssa

Comparison of the member States’ social security agreements with Turkey

Personal scope

table 4

newgenrtpdf

176  Chapter 3

General provisions Provision for only some benefits Possibility to export when residing in the other Contracting State Possibility to export when residing in a third country Administrative arrangement concluded Administrative cooperation free of charge Equal treatment for the exemption of stamps, fees, and authentication of documents Equal status of applications Data protection Dispute resolution

60 months Less than 60 months Possibility of extension

a  Only for Turkish nationals in the EU, not for EU citizens in Turkey. b  Only for the Turkish legislation, not the Belgian legislation. c  Not covered by the export provision. d  Not covered by the export provision. e  Only for the Turkish legislation, not the German legislation. f  Not covered by the export provision. g  Not covered by the export provision.

Administrative cooperation

Aggregation of periods of insurance Export of benefits

Specific rule for posted worker

x x x x x

x x x x x x x x

x x

x

x x

x x

x

x x x

x x

x

x

x x

x x

x

x

x

A Comparative Analysis of the Bilateral Agreements177

178 

Chapter 3

Comparison of the Member States’ Social Security Agreements with Turkey 3.2.1 Personal and Material Scope of the Agreements In terms of material scope, as for the ssa s concluded with India and with the usa, the ssa s concluded with Turkey refer to national legislation. However, whereas the ssa s with India and the usa referred mainly to legislation on statutory pension rights, the ssa s concluded with Turkey have a broader material scope. For the Turkey-​Belgium ssa, the Belgian legislation on sickness and maternity benefits;216 work injuries benefits; statutory pension benefits; invalidity benefits; family benefits; as well as social security in general for employed and self-​employed persons217 are mentioned.218 The same types of benefits under the Dutch legislation are covered by the Turkey-​Netherlands ssa.219 The only difference is that unemployment benefits and special benefits for workers in mines are added.220 In the Turkey-​Germany ssa, the same benefits are covered although the supplementary insurance for metal workers and old-​age insurance for farmers are specific to this agreement.221 With regard to the Turkish legislation, the Turkey-​Belgium ssa, the Turkey-​Netherlands ssa and the Turkey-​ German ssa are very similar.222 The ssa s cover the Turkish legislation on invalidity benefits, survivors’ benefits, old-​age benefits, sickness benefits, work accident and occupational disease benefits, and maternity benefits.223 In comparison, Decision 3/​80 covers all social security benefits; i.e. invalidity, survivors, old-​age, maternity, work accident, family, sickness and unemployment.224 3.2

216 Sickness and maternity benefits were not included in the previous agreement between Turkey and Belgium from 1964. 217 The legislation on social security in general for employed and self-​employed persons is only relevant for Part ii of the agreement on determining the law applicable though (Article 2(1)(6) and (7) of the Turkey-​Belgium ssa). 218 Article 2(1) of the Turkey-​Belgium ssa. 219 Article 2 of the Turkey-​Netherlands ssa. 220 Article 2(a) of the Turkey-​Netherlands ssa. 221 Article 2 of the Turkey-​Germany ssa. 222 Although they do not necessarily refer to the exact same name of the Turkish legislation, that difference can be explained by the fact that the Turkish legislation on social security has changed and therefore the names of the branches have also changed. Law No. 5510 on Social Insurance and Universal Health Insurance Law, 31.05.2006, T.C. Resmi Gazette 2006. Available in English at http://​turkishlaborlaw.com/​images/​turkish-​social-​security-​ law/​social-​security-​law-​5510.pdf, last accessed on 31 May 2019. The Turkey-​Belgium ssa has been signed in 2014 and includes the new names of the Turkish legislation. 223 Article 2(2) of the Turkey-​Belgium ssa; Article 2 of the Turkey-​Netherlands ssa; Article 2 of the Turkey-​Germany ssa. 224 Article 4 of Decision 3/​80.

A Comparative Analysis of the Bilateral Agreements

179

The Draft Decision offers the same coverage but family, sickness, maternity and unemployment benefits are excluded from the export provision.225 As for the personal scope of the ssa s, the Turkey-​Belgium ssa provides that the agreement applies to persons who are or have been subject to the legislation of one of the Contracting Parties, as well as to everyone who derives rights from that person.226 The Turkey-​Netherlands ssa provides for the same rule except that it adds that the persons should be nationals of one of the Contracting States.227 By restricting the scope of the agreement to the nationals of the Contracting States, the Turkey-​Netherlands ssa does not comply with the Gottardo judgment. In addition, the Turkey-​Netherlands ssa mentions that the agreement does not apply to members of the diplomatic staff nor to consular staff who are sent by their State to the other Contracting State.228 The Turkey-​ Germany ssa is organised differently in the sense that it lists the persons to whom the agreement applies. Hence, the agreement applies to (a) nationals of either the Contracting States, (b)  refugees within the meaning of Article 1 of the Convention Relating to the Status of Refugees, (c) stateless persons, (d)  nationals of other States, where those other States and the Contracting State whose legislation is to be applied are subject to supra-​national law or other international treaties on social security, (e) other persons with respect to rights that they derive from a person referred to under letters a to d.229 The personal scope of the bilateral agreements is very different from the personal scope under Decision 3/​80. Indeed, Decision 3/​80 is not based on reciprocity as it is solely restricted to Turkish nationals in the EU.230 The Draft Decision is however based on reciprocity and covers both Turkish nationals and EU citizens in the EU and in Turkey.231 3.2.2 Determination of the Law Applicable As for the India ssa s and the usa ssa s, the Turkey ssa s contain a general rule on the applicable law. That general rule is the lex loci laboris, i.e. the legislation of the country where the work is carried out.232 That rule applies for

2 25 226 227 228 229 230 231 232

Article 1(h) and (i) of the Draft Decision. Article 3 of the Turkey-​Belgium ssa. Article 3(1) of the Turkey-​Netherlands ssa. Article 3(2) of the Turkey-​Netherlands ssa. Article 3 of the Turkey-​Germany ssa. Article 2 of Decision 3/​80. Article 2 of the Draft Decision. Article 7 (1) of the Turkey-​Belgium ssa; Article 7 of the Turkey-​Netherlands ssa; Article 5 of the Turkey-​Germany ssa.

180 

Chapter 3

both employed and self-​employed persons.233 The Turkey-​Belgium ssa provides further several rules in cases where a person is employed in one Contracting State and self-​employed in the other Contracting State,234 or when a person is self-​employed or employed in the two Contracting States simultaneously.235 The sixth State reform in Belgium with the transfer of competence for family benefits to the Regions and Communities236 has a consequence for persons covered by the Turkey-​Belgium ssa. Article 37 of the Turkey-​Belgium ssa provides that it is possible to receive family benefits for children residing in the other Contracting State. However, in Belgium, the child residence will be the criterion determining which Region or Community has to pay the family benefits.237 If the parent works in Belgium but his/​her children reside in Turkey, there will be a question as to which Belgian Region or Community should pay the family benefits. It seems that, in cases for which the children are not resident in Belgium, the situation of the person paying social security contributions in Belgium will be taken into account. Hence, if the children are residing in Turkey, the Region or Community that will pay the family benefits is the one where the undertaking for which the Turkish worker is employed is operating.238 If this connecting factor is not applicable, it is the Region or Community where the Turkish worker resides.239 233 Article 7(1) (2)  of the Turkey-​Belgium ssa; Article 7 of the Turkey-​Netherlands ssa; Article 8a of the Turkey-​Germany ssa. 234 In that case, the employed activities carried out in one Contracting State are considered as employed activities in the other Contracting State (where the person is also self-​ employed) in order to determine the obligations under the social security legislation for self-​employed of that other Contracting State. 235 In that case, the legislation of the State of residence is the applicable one. Article 7(3) and 7(4) of the Turkey-​Belgium ssa. 236 Loi spéciale du 6 janvier 2014 relative à la sixième réforme de l’État, M.B., 31 January 2014, Article 12 and 55. See also the discussion in this research on pp. 162–​163. 237 Accord de coopération entre la Communauté flamande, la Région wallonne, la Commission communautaire commune et la Communauté germanophone portant sur les facteurs de rattachement, la gestion des charges du passé, l’échange des données en matière de prestations familiales et les modalités concernant le transfert de compétence entre caisses d’allocations familiales, M.B., 26 January 2018, Article 2.  V. Flohimont & J-​F. Neven, ‘Allocations familiales: les enjeux du transfert, à mi-​parcous’ Revue Belge de la Sécurité Sociale (2015) 230–​233. 238 Accord de coopération entre la Communauté flamande, la Région wallonne, la Commission communautaire commune et la Communauté germanophone portant sur les facteurs de rattachement, la gestion des charges du passé, l’échange des données en matière de prestations familiales et les modalités concernant le transfert de compétence entre caisses d’allocations familiales, M.B., 26 January 2018, Article 2 (3). 239 Accord de coopération entre la Communauté flamande, la Région wallonne, la Commission communautaire commune et la Communauté germanophone portant sur

A Comparative Analysis of the Bilateral Agreements

181

In addition to this general rule, there are specific rules for specific type of workers. For workers in international transport, the Turkey ssa s provide that the law applicable is the law of the Contracting State where the transport company is registered.240 For seamen, the Turkey-​Belgium ssa mentions that the applicable law is the law of the Contracting State of residence.241 The Turkey-​ Netherlands ssa does not contain a rule on seamen. The Turkey-​Germany ssa provides that the applicable law is the law of the Contracting State’s flag of the ship.242 Despite the fact that the Turkey-​Netherlands ssa does not apply to diplomatic and consular staff,243 there is still a rule in the ssa for determining the law applicable to diplomatic and consular staff.244 The law applicable to diplomatic and consular staff is the law of the Contracting State where the work is carried out245 except if they have made the choice for the law of the Contracting State from where they are sent within 3 months after the start of their work.246 In the Turkey-​Belgium ssa and in the Turkey-​Germany ssa, the rule for diplomatic and consular staff is that the law of the Contracting State that sent them is applicable.247 Finally, all the Turkey ssa s have a rule concerning the situation of posted workers. The Turkey-​Belgium ssa and the Turkey-​Netherlands ssa both provide that posted workers can remain subject to the Contracting State from where they are sent for up to 24 months.248 The Turkey-​Germany ssa has a similar rule but does not provide for any specific maximum period of exemption.249 The Turkey-​Belgium ssa further adds that the period of 24 months can be extended to 36 months if requested before the end of the 24months.250 The

240 2 41 242 2 43 244 245 246 2 47 248 249 250

les facteurs de rattachement, la gestion des charges du passé, l’échange des données en matière de prestations familiales et les modalités concernant le transfert de compétence entre caisses d’allocations familiales, M.B., 26 January 2018, Article 2 (4). Article 8(3) of the Turkey-​Belgium ssa; Article 8(2) of the Turkey-​Netherlands ssa; Articles 6(2) and (3) of the Turkey-​Germany ssa. Article 8(1) of the Turkey-​Belgium ssa. Article 7 of the Turkey-​Germany ssa. There are other scenarios but the flag of the ship is the general rule. Article 3(2) of the Turkey-​Netherlands ssa. Article 9 of the Turkey-​Netherlands ssa. Article 9(1) of the Turkey-​Netherlands ssa. Or within 3  months after the entry into force of the agreement. Article 9(2) of the Turkey-​Netherlands ssa. Article 10 and 11 of the Turkey-​Belgium ssa; Article 8 of the Turkey-​Germany ssa. Article 9(1) of the Turkey-​Belgium ssa; Article 8(a) of the Turkey-​Netherlands ssa. Article 6(1) of the Turkey-​Germany ssa. Article 9(2) of the Turkey-​Belgium ssa.

182 

Chapter 3

Turkey-​Belgium ssa also mentions that the rule on posted workers applies for detachment in third states before going to the other Contracting State.251 This means that if a posted worker from Turkey went to work for six months in Greece before going to work in Belgium, the posted period started from the moment he/​she went to Greece. The Turkey-​Belgium ssa provides that the rule for posted workers is also applicable to the posted workers’ family members provided that they are not themselves engaged in gainful employment.252 Finally, it should be noted that Decision 3/​80 refers to the rules of Regulation 1408/​71253 and the Draft Decision is silent about the issue of determining the law applicable. 3.2.3 Equal Treatment All the ssa s with Turkey contain a provision on equal treatment.254 The Turkey-​Germany ssa is particular in the sense that it lists the persons to whom equal treatment applies.255 In fact, the list of persons concerned by the equal treatment provision is the same as the list under the personal scope provision with the exception that equal treatment does not apply to nationals of other States, where those other States and the Contracting State whose legislation is to be applied are subject to supra-​national law or other international treaties on social security. For example, the equal treatment provision does not apply to other EU nationals. Decision 3/​80 and the Draft Decision both also include a provision on equal treatment.256 3.2.4 Export of Benefits The provisions on the export of benefits in the ssa swith Turkey are similar.257 They provide that there should be no reduction, suspension or annulment of benefits on the sole basis that the beneficiary is residing in the other Contracting State.258 Additionally, the Turkey-​Belgium ssa and the Turkey-​Netherlands 2 51 252 253 254 2 55 256 257 258

Article 9(3) of the Turkey-​Belgium ssa. Article 9(4) of the Turkey-​Belgium ssa. Article 9 of Decision 3/​80. Article 4 of the Turkey-​Belgium ssa; Article 4 of the Turkey-​Netherlands ssa; Article 4 of the Turkey-​Germany ssa. Article 4(a) to (d) of the Turkey-​Belgium ssa. Article 3 of Decision 3/​80 and Article 3 of the Draft Decision. Article 5 of the Turkey-​Belgium ssa; Article 5 of the Turkey-​Netherlands ssa; Article 4a of the Turkey-​Germany ssa. Article 5(1) of the Turkey-​Belgium ssa; Article 5(1) of the Turkey-​Netherlands ssa; Article 4a of the Turkey-​Germany ssa.

A Comparative Analysis of the Bilateral Agreements

183

ssa provide that export of benefits to a third country should be possible if it is possible for the nationals of the Contracting State.259 Although the provisions on the export of benefits are quite similar, the different ssa s have further different details concerning the export of specific benefits. For example, in the Turkey-​Germany ssa, it is provided that prior permission before the change of residence should be asked in order to continue receiving the payment of sickness and maternity benefits.260 The Turkey-​ Belgium ssa restates with regard to every benefit that they are to be paid while residing abroad. For example, old-​age, survivors’ and invalidity benefits should continue to be received even when the beneficiary moves to the other Contracting State.261 Finally, the situation of the Dutch law on the country of residence principle262 must be addressed. According to this law, child benefits263 were to be calculated on the basis of costs of living of the country of residence of the children.264 Turkey has been awarded a country factor of 60%.265 Hence, this 2 59 260 261 262

Article 5 (2) of the Turkey-​Belgium ssa; Article 5(2) of the Turkey-​Netherlands ssa. Article 12 of the Turkey-​Germany ssa. Article 17 of the Turkey-​Belgium ssa. Wet van 29 maart 2012, houdende wijziging van enkele socialezekerheidswetten in verband met aanpassing van de hoogte van de uitkering aan het woonland (Wet woonlandbeginsel in de sociale zekerheid), Staatsblad van het Koninkrijk der Nederlanden 2012, 198. 263 This law also applies to survivors’ benefits under the Dutch General Survivors Act and to invalidity benefits under the Dutch Partially Disabled Act. 264 Article i of the Wet van 29 maart 2012, 198. It should also be noted that in 2014, the Netherlands adopted a law on the complete ban of the export of child benefits which caused a problem that the bilateral agreements concluded by the Netherlands and some third countries which included a provision on export of child benefits needed to be re-​ negotiated or terminated by the Netherlands (Article i of Wet 238 amending Article 41c of the Algemene Kinderbijslagwet). Such a renegotiation or termination of the Turkey-​ Netherlands ssa has not taken place, hence the export of child benefits is still possible for children residing in Turkey on the basis of Article 33 of the Turkey-​Netherlands ssa but with the country factor of 60%. Wet van 19 juni 2014 tot wijziging van enkele socialezekerheidswetten in verband met een andere vormgeving van de exportbeperking in de Algemene Kinderbijslagwet en het regelen van overgangsrecht voor de situatie van opzegging of wijziging van een verdrag dan wel een daarmee gelijk te stellen situatie, Staatsblad 2014, 238. 265 Regeling van de Minister van Sociale Zaken en Werkgelegenheid van 20 april 2012, IVV/​ OOG/​2012/​6311, houdende nadere regels in verband met aanpassing van de hoogte van de uitkering aan het woonland; Regeling van de Minister van Sociale Zaken en Werkgelegenheid van 9 juni 2017, 2017-​0000094795, tot wijziging van de Regeling woonlandbeginsel in de sociale zekerheid 2012 in verband met de actualisering van de woonlandfactoren, 2017, 33538.

184 

Chapter 3

implies that child benefits for children residing in Turkey will be paid up to 60% of the amount it would be paid if the children were residing in the Netherlands. Furthermore, it must be added that this country factor of 60% only applies for benefits which are not covered by Article 6 of Decision 3/​80. For benefits covered by Article 6 of Decision 3/​80, the country factor of 100% applies.266 The country factor of 100% for benefits covered by Article 6 of Decision 3/​80 has been awarded following a judgment of the Court of Justice in Akdas where Article 6 was given direct effect.267 Therefore, Article 6 can be used by Turkish workers in front of Dutch courts in order to claim that benefits covered under Article 6 cannot be reduced on the basis that the beneficiary lives in Turkey and not in the Netherlands. 3.2.5 Aggregation of Periods of Insurance Concerning the aggregation of periods of insurance, all the ssa s with Turkey adopt the same approach. They have specific provisions on the aggregation of periods of insurance for the specific benefits which the ssa s cover. However, not all the ssa s have a provision on the aggregation of periods of insurance for all the benefits they cover. In all the ssa s with Turkey, there is a provision on the aggregation of periods of insurance for sickness benefits,268 for maternity benefits,269 for invalidity benefits,270 for pension benefits,271 and for survivors’ benefits.272 Since the Turkey-​Netherlands ssa is the only ssa that includes unemployment benefits within its scope, it is not surprising that it is also the only ssa with a provision on the aggregation of periods of insurance for unemployment benefits.273 However, all ssa s include family benefits within their scope but the 266 Regeling van de Minister van Sociale Zaken en Werkgelegenheid van 9 juni 2017, 2017-​ 0000094795, tot wijziging van de Regeling woonlandbeginsel in de sociale zekerheid 2012 in verband met de actualisering van de woonlandfactoren, 2017, 33538. 267 Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346, para.68. The Akdas case has been discussed more in details in Chapter 2, pp.82–​84. 268 Article 13 of the Turkey-​Belgium ssa; Article 11 of the Turkey-​Netherlands ssa; Article 11 of the Turkey-​Germany ssa. 269 Article 13 of the Turkey-​Belgium ssa; Article 11 of the Turkey-​Netherlands ssa; Article 11 of the Turkey-​Germany ssa. 270 Article 30 of the Turkey-​Belgium ssa; Article 18 of the Turkey-​Netherlands ssa; Article 27 of the Turkey-​Germany ssa. 271 Article 28 of the Turkey-​Belgium ssa; Article 22 of the Turkey-​Netherlands ssa; Article 27 of the Turkey-​Germany ssa. 272 Article 28 of the Turkey-​Belgium ssa; Article 22 of the Turkey-​Netherlands ssa; Article 27 of the Turkey-​German ssa. 273 Article 34 of the Turkey-​Netherlands ssa.

A Comparative Analysis of the Bilateral Agreements

185

Turkey-​Belgium ssa is the only one that includes a provision on aggregation of periods of insurance for family benefits.274 Decision 3/​80 provides that the rules on aggregation of periods of insurance found in Regulation 1408/​71 apply to sickness and maternity benefits,275 invalidity benefits,276 old-​age benefits,277 accidents at work and occupational diseases benefits,278 death grants,279 and family benefits and allowances.280 It should be noted that the Draft Decision is silent on the issue of aggregation of periods of insurance. The only reference to aggregation can be found in the Preamble, Recital 8, where it is stated that Regulation 1231/​2010 already covers the principle of aggregation of insurance periods acquired by Turkish workers in the various Member States. While this is true, the application of Regulation 1231/​2010 is dependent on a cross-​border movement between the Member States. Regulation 1231/​2010 does not apply to a Turkish worker who came from Turkey to work and reside in Belgium and then returned to Turkey. Furthermore, the Draft Decision is meant to apply to both Turkish nationals and EU citizens in the EU and in Turkey. There is no reason to not include a provision on aggregation of periods of insurance in the Draft Decision. 3.2.6 Administrative Cooperation With regard to administrative cooperation, the ssa  s concluded with Turkey are similar. They all require mutual cooperation between the competent authorities.281 The Turkey-​Germany ssa and the Turkey-​Belgium ssa mention further that the mutual cooperation should be granted free of charge.282 Decision 3/​80 and the Draft Decision also mention that the cooperation should be free of charge.283 Decision 3/​80 as well as all the ssa s precise that documents from one of the Contracting States should be exempted of taxes, stamps and further authentication if documents from the other Contracting State are also exempted.284

2 74 275 276 277 278 279 280 281

Article 36 of the Turkey-​Belgium ssa. Article 10 of Decision 3/​80 referring to Article 18 of Regulation 1408/​71. Article 12 of Decision 3/​80 referring to Article 38 of Regulation 1408/​71. Article 13 of Decision 3/​80 referring to Article 45 of Regulation 1408/​71. Article 15 of Decision 3/​80 referring to Articles 52 to 63 of Regulation 1408/​71. Article 16 of Decision 3/​80 referring to Article 64 of Regulation 1408/​71. Article 18 of Decision 3/​80 referring to Article 72 of Regulation 1408/​71. Article 42 of the Turkey-​Belgium ssa; Article 36 of the Turkey-​Netherlands ssa; Article 43 of the Turkey-​Germany ssa. 282 Article 42 of the Turkey-​Belgium ssa; Article 43 of the Turkey-​Germany ssa. 2 83 Article 20 (2) of Decision 3/​80 and Article 5(2) of the Draft Decision. 284 Article 21 of Decision 3/​80; Article 44 of the Turkey-​Belgium ssa; Article 37 of the Turkey-​Netherlands ssa; Article 44 of the Turkey-​Germany ssa.

186 

Chapter 3

Also, the Turkey-​Belgium ssa, the Turkey-​Netherlands ssa as well as Decision 3/​80 provide for a rule on the equal status of applications or claims.285 This rule means that if a beneficiary has filed an application in one of the Contracting State within the relevant time-​limit but should have done so in the other Contracting State, the other Contracting State should consider the application as if it was correctly made in that other Contracting State. One interesting fact is that the Turkey-​Netherlands ssa provides that the competent authorities should communicate between themselves in English or in French.286 The Turkey-​Germany ssa and the Turkey-​Belgium ssa provide that the language of communication can be the official languages of either Contracting States.287 Furthermore, the Turkey-​Belgium ssa is the only ssa providing for a rule on data protection. It provides that the national legislation of the Contracting States should apply to the processing and transfer of data.288 Neither the Turkey-​Netherlands ssa nor the Turkey-​Germany ssa contain such a rule. The absence of a rule on data protection in the Turkey-​Germany ssa could be explained by the fact that the last amendment to that ssa dates from 1984, a time when data protection was not as crucial as it is today.289 Finally, a provision on resolution of disputes is included in all the ssa s.290 The Turkey-​Belgium ssa mentions that disputes should be resolved by negotiation between the competent authorities of the Contracting States.291 The Turkey-​Netherlands ssa is more detailed in the sense that it requires for the dispute to be resolved within six months and if the dispute is not resolved, an arbitration commission shall be set up.292 The Turkey-​Germany ssa also 285 Article 45 of the Turkey-​Belgium ssa; Article 39 of the Turkey-​Netherlands ssa; Article 22 of Decision 3/​80. 286 Article 38(1) of the Turkey-​Netherlands ssa. Also, the Turkey-​Netherlands ssa has been drafted originally in French and not in Dutch. 287 Article 42(4) of the Turkey-​Belgium ssa; Article 45 of the Turkey-​Germany ssa. 288 Article 43(2) and (3) of the Turkey-​Belgium ssa. 289 According to R. Holzmann, based on his interviews with some experts from the German Pension Insurance, the ministries and liaison agencies who have made several attempts to amend the ssa to the current need of the society (including the issue of data protection) but such attempts have been unsuccessful so far. R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016) 28. 290 Article 47 of the Turkey-​Belgium ssa; Article 41 of the Turkey-​Netherlands ssa; Article 55 of the Turkey-​Germany ssa. 291 Article 47 of the Turkey-​Belgium ssa. 292 Article 41 of the Turkey-​Netherlands ssa.

A Comparative Analysis of the Bilateral Agreements

187

mentions that if the dispute is not resolved, an arbitration commission should settle the issue.293 Contrarily to Decision 3/​80, the Draft Decision contains a provision on the resolution of disputes.294 4

Conclusion

Based on the comparative legal analysis of the agreements between Belgium, Germany and the Netherlands with respectively India, the usa and Turkey, several conclusions can be made. Firstly, even though the agreements are concluded in ad hoc situations, their contents are similar. They all contain provisions on personal and material scope as well as the five fundamental elements of social security coordination: i.e. equal treatment, rule on determining the law applicable, aggregation of periods of insurance, export of benefits and administrative cooperation. The only exception is the India-​Netherlands ssa which does not contain a provision on the aggregation of periods of insurance. Second, the content of the bilateral agreements is influenced by the period when they are concluded. Hence, older agreements such as the ones with the usa do not contain a provision on data protection. Also, the usa-​Belgium ssa and the usa-​Germany ssa do not respect the Gottardo judgment. They include within their scope nationals of the Contracting States as well as refugees and stateless persons. However, by their wording, the usa-​Belgium ssa and the usa-​Germany ssa could not be applied to all EU citizens in accordance with the Gottardo case. Third, despite finding the same elements in all the ssa s, the provisions are drafted differently and reflect the different social security systems. This is a positive finding as bilateral agreements are based on reciprocity and the need to adapt to the reality and characteristics of the different social security s­ ystems. Fourth, the more the third country is geographically closer, the more benefits will be included in the ssa s. Indeed, the ssa s concluded with India and usa have a material scope essentially restricted to pension rights (i.e. survivors’, invalidity and old-​age benefits) whereas the ssa s concluded with Turkey include a broader scope such as family benefits, or unemployment benefits in the case of the Turkey-​Netherlands ssa. On the contrary, the further away the third country is, the longer would be the period of exemption for posted

2 93 Article 55 of the Turkey-​Germany ssa. 294 Article 7 of the Draft Decision.

188 

Chapter 3

workers. In the ssa s concluded with India and usa, the period of exemption was generally of 60 months295 with possibilities of extension of that period.296 The ssa s with Turkey contain exemptions of 24 months which corresponds to the period of exemption allowed under Regulation 883/​2004. In conclusion, for the ssa s analysed in this Chapter, it can be said that there is a certain coherency among the agreements. In fact, there is a common approach to social security coordination with the specific third countries. Of course, between the different third countries, there are differences in the agreements but an opposite finding would have been surprising. The third countries selected for this research; i.e. India, Turkey and usa, have a very different historical, migratory and economic links with the Member States. Additionally, their social security systems have developed differently. As a result, finding different elements in the different ssa s is logical. Nonetheless, when isolating specific third countries, the same elements of social security coordination can be found. Whether those elements are the work of the Member States cooperating together or the will of the third country is something that can be wondered.

295

The India-​Germany ssa has a period of exemption of 48 months with an extension of 12 months (total of 60 months). 296 Possibilities of extension of the period were only mentioned in the ssa s concluded with India.

­c hapter 4

International Standards Relevant for Social Security Coordination with Third Countries When considering the development of a common EU approach to social security coordination, international standards developed by international organisations such as the United Nations (‘UN’), the International Labour ­Organisation (‘ilo’) or the Council of Europe cannot be ignored. Most of the instruments developed by international organisations provide for minimum standards in the field of social security. Only rarely do they concern specifically the subject of social security coordination. The majority of instruments adopted by international organisations suffer from a lack of ratifications. However, the importance of international standards as guidelines that States should follow is largely recognised.1 In that ­regard, the European Commission considers the collaboration with international organisation as of the outmost importance in order to promote a high level of social protection in the EU and in the world.2 Despite the political support of the European Commission, it should be said that the EU itself cannot ratify the instruments adopted by international organisations that will be discussed in this Chapter. As the EU is not a State, the only way in which the EU can participate in those international agreements is through a reio clause (regional economic integration organisations clause). However, none of the international instruments discussed in this Chapter, except the echr,3 contain such a reio clause. As a consequence, the role of the EU has been to promote the ratification of those international instruments by its Member States.4 Whereas Chapters 2 and 3 had the purpose of identifying the elements of the EU and the national approaches on social security coordination with third 1 T. Dijkhoff, ‘The contested value of international social security standards in the European Union’ 14 European Journal of Social Security (2012) 174–​193; F.  Pennings, ‘The Meaning of International Standards in Social Security’, in J. Van Langendonck (Ed.), The Right to Social Security (Social Europe Series, 12, Intersentia 2007) 219–​223. 2 European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 9. 3 Article 59(2) of the echr has been amended by Protocol No.14 to the echr in order to enable the accession of the EU to the echr. 4 This role is further discussed when it comes to the relationship between the EU and the ilo, pp. 193–​195.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_005

190 

Chapter 4

countries, this Chapter aims more at reflecting on the relevance of international standards for the future development of a common EU approach. As a result, this Chapter elaborates on the different international instruments dealing with the social security rights of migrant workers. This Chapter covers both international instruments that set minimum standards in the field of social security and international instruments that provide for rules on social security coordination specifically. 1

United Nations’ Instruments

The first international instrument that proclaimed the right to social security as a human right was the Universal Declaration of Human Rights by the UN General Assembly in 1948. This shows the importance of the UN in establishing the right to social security worldwide.5 Created after the Second World War, in 1945, the UN is an important international organisation in the protection of human rights, including the right to social security. The UN has adopted instruments providing for minimum human rights standards. For the purpose of this research and due to their explicit reference to social security, the most relevant UN instruments to consider are the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. Those three instruments constitute what is called the ‘International Bill of Human Rights’. They are discussed in Sub-​Section 1.1. Additionally, the UN has been active in protecting migrant’s rights. It adopted five legal instruments concerned with international migration: the 1951 Convention relating to the Status of Refugees; the 1967 Protocol relating to the Status of Refugees; the 1990 International Convention on the Rights of All Migrant Workers and Members of Their Families; the 2000 Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children; and the 2000 Protocol against the Smuggling of Migrants by Land, Sea and Air. Keeping in mind the subject of this research, only the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families is discussed in Sub-​Section 1.2. Besides those legal instruments, the UN has put 5 That being said, the ilo is the most important international organization in the work of developing and interpreting the right to social security. L. Lamarche, ‘The Right to Social Security in the International Covenant on Economic, Social and Cultural Rights’, in A. Chapman & S. Russell (Eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia 2002) 89.

International Standards Relevant for Social Security

191

political pressure and attention on issues encountered by migrants. In 1999, the UN created the position of Special Rapporteur on the Human Rights of Migrants.6 The Special Rapporteur, currently represented by Mr. Felipe González Morales,7 ensures that compliance with international standards on migrants’ rights is respected. After receiving information on migrants’ rights from various sources, the Special Rapporteur drafts recommendations on measures to be adopted in order to improve the migrant’s situation. His recommendations can be found on the website of the UN Office for the High Commissioner for Human Rights.8 Additionally, the Special Rapporteur reports regularly to the Human Rights Council and to the General Assembly of the UN. His last report from 2017 mentions the portability of social security benefits as one of the targets for the creation of a 2035 agenda on facilitating human mobility.9 1.1 The International Bill of Human Rights The Universal Declaration of Human Rights of 10th December 1948 (udhr) was the first universal international human rights instrument. Despite not being originally a legally binding act,10 the udhr has now attained the status of customary law. The right to social security is enshrined in Article 22 udhr which provides that ‘Everyone, as a member of society, has the right to social security and is entitled to realisation, through national effort and international co-​operation and in accordance with the organisation and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality’. Article 25 udhr provides for more specific rights to receive social benefits such as adequate living conditions (food, housing, medical care and social services) as well as ‘the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’. After the adoption of the udhr, the un adopted the International Covenant on Civil and Political Rights (iccpr) and the International Covenant on Economic, Social and Cultural Rights (icescr) in 1966. The right to social security

6 7

Commission on Human Rights resolution 1999/​44. The mandate of Special Rapporteur was held by Mr François Crépeau from August 2011 until July 2017. 8 Website of the UN Office for the High Commissioner for Human Rights:  http://​ www.ohchr.org/​EN/​Issues/​Migration/​SRMigrants/​Pages/​SRMigrantsIndex.aspx. 9 Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, UN General Assembly, 28 April 2017, A/​HRC/​35/​25. 10 The udhr was adopted by a General Assembly Resolution.

192 

Chapter 4

is found in Article 9 of the icescr.11 It states that ‘The States Parties to the present Covenant recognise the right of everyone to social security, including social insurance’. It is the shortest provision of the icescr and does not provide any details as regards the standards of protection offered.12 Indication on its interpretation can be found in Articles 22 and 25 of the udhr as well as in the ilo Convention No. 102 on Minimum Standards of Social Security,13 as intended by the drafters of the icesr.14 Additionally, Article 9 of the icescr must be interpreted and implemented in line with the UN Committee on Economic, Social and Cultural Rights General Comments No. 19.15 Besides being interpretative tools, the legal relevance of General Comments No.19 is highly disputed.16 Currently, there are 166 State Parties and 71 Signatories to the icescr.17 It should be noted that only States can be parties to the icescr and there is no reio clause which would allow the EU to participate in it. That being said, all countries selected for this research are State Parties to the icescr except for the usa which is only a Signatory.18 Despite this large ratification rate, the impact of the icescr is political rather than legal. The human rights approach of the icescr implies considerable freedom for the States Parties while implementing it.19 Furthermore, the compliance of States Parties with their obligations arising from the icescr is based on a reporting system. According to Articles

11 The iccpr on political and civil rights does not contain a reference to social security rights. 12 For a recent discussion on the right to social security offered in the icescr, see M. Ssenyonjo, Economic, Social and Cultural Rights in International Law (Second Edition, Hart Publishing 2016) 500–​504. 13 This Convention is discussed in this Chapter, pp.189–​191. 14 E. Riedel, ‘The Human Right to Social Security:  Some Challenges’, in E.  Riedel (Ed.), Social Security as a Human Right: Drafting a General Comment on Article 9 ICESR-​Some Challenges (Springer 2007) 21. 15 The Committee on Economic, Social and Cultural Rights: General Comment No. 19: The right to social security (Art.9), adopted at the 39th Session, 5–​23 Nov. 2007, Doc. E/​C.12/​ GC/​19 (UN). 16 For a discussion on the impacts of those General Comments on EU migration law, see A.  Farahat, ‘Is there a human right to equal social security? EU migration law and the requirements of Art. 9 ICESCR’, in M. Maes, M.-​C. Foblets, Ph. De Bruycker (Eds.), External Dimension of EU Migration and Asylum Law and Policy (Bruylant 2011) 529–​548. 17 Status as at the 22 October 2017. 18 Belgium (signed in 1968, ratified in 1983); Germany (signed in 1968, ratified in 1973); India (ratified in 1979); the Netherlands (signed in 1969, ratified in 1978); Turkey (signed in 2000, ratified in 2003); usa (signed in 1977, but not ratified). 19 F. Pennings, ‘Historical and Theoretical Background of Standard Setting in Social Security’, in U. Becker, F. Pennings & T. Dijkhoff (Eds.), International Standard-​Setting and Innovations in Social Security (Kluwer Law International 2013) 17.

International Standards Relevant for Social Security

193

16 and 17 of the icescr, the Economic and Social Council should receive State’s reports. The reports are then analysed by the Committee on Economic, Social and Cultural Rights.20 Based on the reports received, the Committee addresses recommendations to the States Parties via its ‘concluding observations’ which are publicly available on the Committee’s website.21 Apart from this reporting mechanism, there is no other compliance mechanism of the icescr. The International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (icrmw) The icrmw is often described as the highest achieving international human right instrument for the protection of migrant workers.22 The road to adoption of the icrmw was a long and sinuous one. The idea of an international convention for migrant workers emerged in the 1970’s. However, the idea was laid down on paper only a decade later. The text was then finally adopted by consensus by the UN General Assembly in the 1990’s. As from 1990, the icrmw was opened for ratification. It only entered into force in 2003 when a sufficient number of ratifications was reached.23 From the idea until the entry into force, 30 years passed by. The icrmw is a comprehensive instrument reflecting the entire migration process of the migrant workers. The rights contained in the icrmw are reminiscences of rights already enshrined in the udhr, iccpr and the icescr but adapted for the particularly vulnerable group of migrant workers and their family members.24 The provisions of the icrmw are also largely inspired by the ilo Conventions No. 9725 and 14326 while being more precise than its 1.2

20 21 22 23

24

25 26

This Committee was set up in 1985 in order to monitor the compliance of States Parties with the Covenant. http://​www.ohchr.org/​en/​hrbodies/​cescr/​pages/​cescrindex.aspx, last accessed on 31 May 2019. R. Cholewinski, ‘Human Rights of Migrants:  the Dawn of a New Era?’ 24 Georgetown Immigration Law Journal (2009–​2010) 586. E. MacDonald & R.  Cholewinski, ‘The ICRMW and the European Union’, in P.  De Guchteneire, A.  Pécoud & R.  Cholewinski (Eds.), Migration and Human Rights:  the United Nations Convention on Migrant Workers’ Rights (unesco Publishing, Cambridge University Press 2009) 360. A. Desmond, ‘The Triangle that could Square the Circle? The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the EU and the Universal Periodic Review’ 17 European Journal of Migration and Law (2015) 45. ilo Convention concerning Migration for Employment, No. 97, 1 July 1949. ilo Convention concerning Migration in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, No.143, 24 June 1975.

194 

Chapter 4

models.27 The icrmw is also more state-​oriented than the ilo Conventions as the famous tripartite structure of the ilo is not present at UN level.28 For example, the interests of the States can be seen in Article 79 where it is enshrined that the rights of the State Parties to govern admission criteria for the admission of migrant workers shall not be affected by the icrmw. Another particularity of the icrmw is that irregular migrant workers are included within its personal scope. With regard to social security, Article 27 provides for equal treatment in the State of employment for migrant workers. Additionally, Article 28 demands medical care in emergency situations. Concerning the coordination of social security systems, Article 61 (3) emphasises the importance that the workers ‘remain adequately protected by the social security systems of their States of origin or habitual residence during their engagement’. It further holds that ‘States Parties concerned shall take appropriate measures with the aim of avoiding any denial of rights or duplication of payments in this respect’. The icrmw suffers from a low ratification rate. States Parties to this convention are mostly countries of origin of migrant workers. It counts currently 51 States Parties and 39 Signatories.29 For the purpose of this research, it is interesting to note that Turkey ratified the icrmw.30 None of the Member States of the European Union signed nor ratified the icrmw,31 despite the original 27

A. Pécoud & P. de Guchteneire, ‘Migration, Human Rights and the United Nations: An Investigation into the Obstacles to the UN Convention on Migrant Workers Rights’ 24 The Windsor Yearbook of Access to Justice, (2006) 246. 28 R. Cholewinski, ‘International Labour Law and the Protection of Migrant Workers: Revitalizing the Agenda in an Era of Globalization’, in J.D. Craig & M. Lynk (Eds.), Globalization and the Future of Labour Law (Cambridge University Press 2006) 415. 29 Status as at 22 October 2017. As a matter of comparison (if it can be compared), the Convention of the Rights of Persons with Disabilities, also part of the ten core international human rights instruments, has 157 States Parties and 27 Signatory. 30 Turkey signed the icrmw in 1999 and ratified it in 2004. 31 For a brief overview on the reasons for the lack of ratification of the icrmw by the Member States of the European Union, See E.  MacDonald & R.  Cholewinski, ‘The ICRMW and the European Union’, in P. De Guchteneire, A. Pécoud & R. Cholewinski (Eds.), Migration and Human Rights: the United Nations Convention on Migrant Workers’ Rights (unesco Publishing, Cambridge University Press 2009) 360–​392; A. Desmond, ‘The Triangle that could Square the Circle? The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the EU and the Universal Periodic Review’ 17 European Journal of Migration and Law (2015) 48–​69. For a detailed overview of the reasons, See E. MacDonald & R. Cholewinski, The Migrant Workers Convention in Europe. Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: EU/​EEA Perspectives. (unesco Publishing, Migration Studies 1, 2007).

International Standards Relevant for Social Security

195

support of the European Commission to ratify it.32 Furthermore, the EU itself cannot participate in the icrmw. Indeed, the icrmw is only open to States and does not include a reio clause (regional economic integration organisations clause) which is the only way for the EU itself to ratify an international instrument. 2

International Labour Organisation’s Instruments

The International Labour Organisation, commonly referred to as the ‘ilo’, was created in the aftermath of World War i in 1919. Its creation originated from the ideal of accomplishing peace through social justice. In order to achieve social justice, access to social security was considered crucial.33 In 1946, after the Declaration of Philadelphia, the ilo became a United Nations specialised agency. The tasks of the ilo consist of setting international standards in the field of labour law. After the recognition of social security as a human right by the Universal Declaration of Human Rights in 1948, the ilo took the task of developing the right to social security through the adoption of conventions and recommendations.34 Throughout its history, the ilo developed three generations of labour standards.35 The first generation of labour standards dates from the inter-​war period (1919–​1944). It largely reflects the system of insurance schemes. The first generation of labour standards emphasised the importance of compulsory affiliation, administration by a non-​profit organisation, and the participation of the insured person in the management of the administration. Those first-​generation standards have been developed in separate 32

33 34 35

At the moment of the enactment of the icrmw, the European Commission supported the ratification of the icrmw by the Member States. Currently, the European Commission seems to have adopted a more neutral stance. See European Commission ‘Immigration and Asylum Policies’ (Communication) COM (1994) 23, 29 (paras 109–​110); European Commission, ‘Maximising the Development Impact of Migration: The EU contribution for the UN High-​level Dialogue and next steps towards broadening the development-​ migration nexus’(Communication) COM (2013) 292 final, 6. Founding Treaty of the ilo, Part xiii of the Treaty of Versailles of 28 June 1919. ilo Convention concerning Minimum Standards of Social Security, No. 102, 28 June 1952. T. Dijkhoff, ‘The contested value of international social security standards in the European Union’ 14 European Journal of Social Security (2012) 176. F. Pennings, ‘Historical and Theoretical Background of Standard Setting in Social Security’, in U.  Becker, F.  Pennings & T.  Dijkhoff (Eds.), International Standard-​Setting and Innovations in Social Security (Kluwer Law International 2013) 20–​21; J-​M. Servais, International Labour Law (Third Revised Edition, Kluwer Law International 2011) 24–​31.

196 

Chapter 4

conventions, each covering a different social risk. Convention No. 48 concerning the Establishment of an International Scheme for the Maintenance of Rights under Invalidity, Old-​Age and Widows’ and Orphans’ Insurance36 from 1938 is an instrument from the first generation of labour standards. The second generation of standards (1944–​1964) closely reflects the reality of the Second World War. As a result, the focus of the second-​generation standards was to combat poverty with the purpose to ensure human dignity. In that regard, the idea arose that social security should not be restricted to workers but instead extended to other citizens. The adopted recommendations and conventions were therefore universal and comprehensive instruments. The adoption of Convention No. 102 on Minimum Standards of Social Security,37 considered as a milestone instrument,38 reflects that desire of achieving social protection of all citizens. Convention No.118 on Equality of Treatment in Social Security39 is another example of the second-​generation standards developed by the ilo. The second-​generation standards pursued ambitious protective measures for workers, yet these ambitious measures scared away the national authorities and resulted in few States ratifying them. For the third-​generation standards (1952–​1988), the ilo learnt the lessons from the previous era of poor ratifications and decided to adopt less comprehensive instruments. In that context, the original approach of the first-​generation instrument whereby a convention was covering only one risk returned. Nonetheless, the third-​generation recommendations and conventions set higher standards than any of the previous instruments adopted by the ilo. Convention No. 157 concerning the Establishment of an International Scheme for the Maintenance of Social Security40 is an example of the third-​generation instruments. The ilo develops labour law standards, including social security standards, through the adoption of recommendations or conventions. Recommendations are simply guidelines on further international, regional or national 36 37 38 39 40

ilo Convention concerning the Establishment of an International Scheme for the Maintenance of Rights under Invalidity, Old-​Age and Widows’ and Orphans’ Insurance, No. 48, 22 June 1935. ilo Convention concerning Minimum Standards of Social Security, No. 102, 28 June 1952. F. Pennings, ‘The Meaning of International Standards in Social Security’, in J.  Van Langendonck (Ed.), The Right to Social Security (Social Europe Series, 12, Intersentia 2007) 208. ilo Convention concerning Equality of Treatment of Nationals and Non-​Nationals in Social Security, No.118, 28 June 1962. ilo Convention concerning the Establishment of an International Scheme for the Maintenance of Social Security, No. 157, 21 June 1982.

International Standards Relevant for Social Security

197

actions necessary to secure the rights of workers, while conventions need to be ratified by States. Most ilo conventions are optional. However, eight ilo conventions41 are considered to have a fundamental status42 meaning that ilo Member States43 are automatically bound by them due to their ilo ­membership.44 From an institutional perspective, it must be said that both conventions and recommendations are adopted at the International Labour Conference where representatives of national governments, trade unions as well as employer’s organisations are present. The broad representation of those three actors within the ilo’s structure constitutes a unique construction amongst international organisations. This unique structure is simultaneously a strength and a weakness. It is a strength as the different representatives protect the interests of the various stakeholders in the field of labour, yet it is a weakness because the conflicting interests result in concessions and minimum rules being set. There is no judicial body able to ensure compliance by the States with the ilo conventions. Instead, compliance is ensured through a mechanism of ‘naming and shaming’ by which State Parties have to report periodically about their implementation of the conventions. These national reports are sent to the Committee of Experts on the Application of Conventions and Recommendations (ceacr), composed of 20 independent experts. The Committee then either responds through observations published within its annual reports, or through direct requests to the State concerned, publicly available on the ilo website. The annual reports of the Committee of Experts are submitted to the Conference Committee on the Application of Standards; a body composed of 41

42

43 44

These are the Convention No. 87 (1948) on the Freedom of Association and Protection of the Right to Organise; the Convention No. 98 (1949) on the Right to Organise and Collective Bargaining; the Convention No. 29 (1930) on Forced Labour; the Convention No.105 (1957) on the Abolition of Forced Labour; the Convention No.138 (1973) on Minimum Age; the Convention No.182 (1999) on Worst Forms of Child Labour; the Convention No.100 (1951) on Equal Remuneration; and the Convention No.111 (1958) on Discrimination. For a discussion on this fundamental status, see R.  Cholewinski, ‘Labour Migration Management and the rights of migrant workers’, in A.  Edwards & C.  Ferstman (Eds.), Human Security and Non-​citizens:  Law, Policy, and International Affairs (Cambridge University Press 2010) 276; For the impact of the fundamental status of those conventions on the right to social security in ilo policies, see K. Tapiola, ‘Global Standards: The Policy of the ILO’, in U. Becker, F. Pennings & T. Dijkhoff (Eds.), International Standard-​ Setting and Innovations in Social Security (Kluwer Law International 2013) 43–​51. Currently, there are 185 Member States to the ilo. According to Paragraph 2 of the ilo Declaration on Fundamental Principles and Rights at Work, 18 June 1998.

198 

Chapter 4

the representatives of governments, workers, and employers. The decision to make recommendations to a particular State is then made by this Conference Committee on the Application of Standards. If the Committee makes a direct request, it generally asks for additional information or technical questions. The nature of the compliance mechanism of the ilo instruments is therefore political rather than legal. There are only two conventions dealing specifically with labour rights of migrant workers: Convention No.9745 and Convention No.143.46 First, Convention No.97 deals with labour migration and covers the entire journey of a migrant worker, from departure until destination. The reference to social security is in its equal treatment provision (Article 6(1) (b)). Convention No.97 has been ratified by 49 States out of the 185 Member States of the ilo.47 Second, Convention No.143 focuses on combatting illegal migration and illegal work. It also includes a reference to social security in its equal treatment provision (Article 10). This Convention has not been widely ratified, as only 23 States are parties to it.48 Finally, only a few ilo conventions deal strictly with the subject of social security coordination. Those are ilo Conventions No.48, No.157 and No.118, discussed in Sub-​Section 2.2.1, Sub-​Section 2.2.3 and Sub-​Section 2.2.2 Additionally, despite the fact that Convention No. 102 on Minimum Standards of Social Security is not strictly about social security coordination, it is considered in Sub-​Section 2.1.1 due to its important character in the field of social security more generally. 2.1 ilo Instruments with Relevance for Social Security Coordination 2.1.1 ilo Convention No. 102 ilo Convention No. 102 concerning Minimum Standards of Social Security ‘is widely recognised as the most important and influential international standard-​setting instrument in the field of social security’.49 Convention No.102 was inspired by Recommendation No.67 on Income Security50 and 45 46 47 48 49 50

ilo Convention concerning Migration for Employment, No. 97, 1 July 1949. ilo Convention concerning Migrations in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, No.143, 24 June 1975. For the purposes of this research, it is important to note that while Belgium (27th July 1953), Germany (22nd June 1959), and the Netherlands (20th May 1952) are parties to Convention No.97. The US, India, and Turkey have not ratified it. None of the States studied in this research are parties to Convention No. 143. T. Dijkhoff, ‘The Guiding Role of ILO Convention No.102’, in U.  Becker, F.  Pennings & T.  Dijkhoff (Eds.), International Standard-​Setting and Innovations in Social Security (Kluwer Law International 2013) 53. ilo Recommendation concerning Income Security, No. 67, 12 May 1944.

International Standards Relevant for Social Security

199

No.69 concerning Medical Care.51, 52 Designed with the main goal of providing global social protection,53 Convention No. 102 covers the nine traditional branches of social security: medical care,54 sickness,55 unemployment,56 old-​ age,57 employment injury,58 family,59 maternity,60 invalidity,61 and survivor’s benefits.62 The branches and the risks they cover are further detailed in Parts ii to x of the Convention. The level of details provided by the Convention for the nine branches of social security is extensive.63 It contains for each benefits a rule on personal scope, material scope, the conditions for access to a benefit, as well as the level and duration of a benefit. Convention No. 102 is not an instrument providing rules on social security coordination. Rather, it aims at harmonising the domestic laws by providing minimum standards which can have an impact on social security coordination. For example, Article 68 of Convention No. 102 provides for equality of treatment of non-​national residents. Article 69 contains the conditions allowed for a benefit of a person to be suspended. Article 70 complements it by securing a right of appeal in case of refusal of the benefit or complaint as to its quality and quantity. Additionally, Convention No.102 provides for the principle of financial solidarity in Article 71. It provides that the cost of the benefits and of the administration of those benefits should be borne collectively and in accordance with the person’s ability to pay.64 Further, Article 71 (3) states that the Members of this Convention should accept general responsibility for the due provision of the benefits provided. 65 Members of the ilo have ratified Convention No. 102. Hence, compared to the other ilo conventions discussed, Convention No. 102 has a large number of ratifications. For the purpose of this research, it is interesting to note that 51 52 53

ilo Recommendation concerning Medical Care, No.69, 12 May 1944. ilo Preparatory work of Convention No.102, Rapport iv, 1951. B. Kahil-​Wolff & P-​Y. Greber, Sécurité sociale:  aspects de droit national, international et européen (Dossier de droit européen n°14, Bruylant 2006) 149. 54 Part ii of the Convention from Article 7 to Article 12. 55 Part iii of the Convention from Article 13 to Article 18. 56 Part iv of the Convention from Article 19 to Article 24. 57 Part v of the Convention from Article 25 to Article 30. 58 Part vi of the Convention from Article 31 to Article 38. 59 Part vii of the Convention from Article 39 to Article 45. 60 Part viii of the Convention from Article 46 to Article 52. 61 Part ix of the Convention from Article 53 to Article 58. 62 Part x of the Convention from Article 59 to Article 64. 63 For a discussion on each of the benefits covered, see the work of J-​M. Servais, International Labour Law (Third Revised Edition, Kluwer Law International 2011) 279–​297. 64 Article 71(1) of Convention No.102.

200 

Chapter 4

22 EU Member States have ratified it,65 including Belgium, Germany and the Netherlands. It must be added that Turkey has also ratified Convention No. 102, in 1975. In ratifying Convention No. 102, States can choose to be bound by only certain Parts of the Convention.66 This resulted in the fact that all Members to the Convention No. 102 have excluded some Parts of the Convention and some benefits.67 2.2 ilo Instruments Specifically on Social Security Coordination 2.2.1 ilo Convention No. 48 Convention No. 48 concerning the Establishment of an International Scheme for the Maintenance of Rights under Invalidity, Old-​Age and Widows’ and Orphans’ Insurance was adopted in 1935 and entered into force in 1938. Convention No. 48 provides for rules on social security coordination to be followed by the Member States who ratify that Convention. For example, Article 2 provides for detailed rules on the aggregation of periods for persons who have been affiliated to insurance institutions of two or more Member States. That article is applicable irrespective of the nationality of the person affiliated. Another example of a detailed provision is Article 4. It states that the institution under which a person is affiliated might decline any responsibility to grant a benefit if the person totalise less than 26 months of insurance. Convention No. 48 contains also provisions on the maintenance of rights in course of acquisition (Part ii of the Convention), maintenance of rights acquired (Part iii of the Convention), as well as provisions on mutual assistance for the administration (Part iv of the Convention) and a provision on equal treatment (Article 18). Despite its comprehensiveness, or maybe because of its completeness, this Convention has attracted few ratifications. It has been ratified by only 12 Members of the ilo: Bosnia and Herzegovina (1993), Croatia (1991), Hungary (1937), Israel (1963), Italy (1952), Montenegro (2006), Netherlands (1938), Poland

65

66 67

Austria (1969), Belgium (1959), Bulgaria (2008), Croatia (1991), Cyprus (1991), Czech Republic (1993), Denmark (1955), France (1974), Germany (1958), Greece (1955), Ireland (1968), Italy (1956), Luxembourg (1964), Netherlands (1962), Poland (2003), Portugal (1994), Romania (2009), Slovakia (1993), Slovenia (1992), Spain (1988), Sweden (1953), and the United Kingdom (1954). Article 2 of the Convention. See the website of the ilo on the ratification of Convention No.102 for a detailed overview of the extent to which the Members of the Convention No.102 are bound to which benefits: http://​www.ilo.org/​dyn/​normlex/​en/​f ?p=NORMLEXPUB:11300:0::NO:11300:P11300_​ INSTRUMENT_​ID:312247:NO, last accessed on 31 May 2019.

International Standards Relevant for Social Security

201

(1938), Serbia (2000), Slovenia (1992), Spain (1937), and the Former Yugoslav Republic of Macedonia (1991). However, 4 Members have denounced the Convention and as a result the Convention does not apply to them anymore. Those Members are Hungary (denounced in 1983), Netherlands (denounced in 1999), Poland (denounced in 1973), and Spain (denounced in 1987).68 2.2.2 ilo Convention No. 118 Convention No. 118 on the Equality of Treatment in Social Security was adopted in 1962 and entered into force in 1964. Besides equal treatment of nationals and non-​nationals with regard to social security (Articles 3 and 4 of the Convention), Convention No. 118 also provides for maintenance of acquired rights (Article 5(1), Article 6 and Article 7(1) of the Convention) and rights in course of acquisition (Article 7(1) and (2) of the Convention), as well as administrative cooperation (Article 11 of the Convention). Convention No. 118 covers the nine branches of social security (Article 2 of the Convention). It is however possible for Member States to ratify partially the Convention so as to exclude one or several branches of social security (Article 2(2) and (3) of the Convention). Convention No. 118 has been ratified by 38 Members of the ilo. For the purposes of this research, it is interesting to know that from the Member States, only eight have ratified it. Those are Denmark (1969), Finland (1969), France (1974), Germany (1971), Ireland (1964), Italy (1967), Netherlands (1964), and Sweden (1963). The Netherlands however denounced the Convention in 2004. It is also interesting to note that the Netherlands was the only EU Member State who had ratified the Convention as regards to the nine branches of social security. All the other Member States have made reservations concerning the material scope of Convention No. 118.69 2.2.3 ilo Convention No. 157 and Recommendation No. 167 Convention No. 157 concerning the Establishment of an International System for the Maintenance of Rights in Social Security was adopted in 1982 and entered into force in 1986. This Convention was meant to be an improved version 68 69

It must be said however that the denunciation of Spain was automatic as it is now a party to the Convention No.157 which replaces and goes further than Convention No. 48. For an account of the branches of social security accepted by each EU Member State party to the ilo Convention No.118, please visit the website: http://​www.ilo.org/​dyn/​normlex/​ en/​f ?p=NORMLEXPUB:11300:0::NO:11300:P11300_​INSTRUMENT_​ID:312263:NO, last accessed on 31 May 2019.

202 

Chapter 4

of Convention No. 48 with the inclusion of the nine branches of social security set out by Convention No. 102.70 Article 4 of Convention No. 157 specifies that Members to the Convention might want to give effect to the Convention by concluding further bilateral or multi-​lateral agreements. Recommendation No. 167 concerning the Establishment of an International System for the Maintenance of Rights in Social Security serves as a model agreement for the Members States who would like to conclude bilateral or multilateral agreements.71 Despite the fact that Convention No. 157 is to serve as a model agreement, it is not drafted in a vague manner and contains detailed provisions on social security coordination. It contains a provision on determining the law applicable (Article 5, Part ii of the Convention), several provisions on the maintenance of rights acquired or in course of acquisition (Part iii and iv of the Convention), as well as rules on good administrative cooperation (Part v of the Convention). Convention No. 157 has a low ratification rate as Convention No. 48. It has been ratified by only four States: Kyrgyzstan (2008), Philippines (1994), Spain (1987) and Sweden (1984). 2.3 The Relevance of ilo Instruments within the European Union The relevance of the ilo conventions and recommendations within the European Union can be seen from two angles: first, from their influence on national social security systems and second, from their influence on the European Union itself. Firstly, the impact of the ilo conventions and/​or recommendations on national social security systems is sometimes difficult to grasp. Several studies have been conducted on the impact of the ilo instruments on social security systems.72 It can be said that ilo instruments have become common ground

70 71 72

Preamble to Convention No. 157 and Article 20 of the Convention. ilo Recommendation concerning the Establishment of an International System for the Maintenance of Rights in Social Security, No. 167, 20 June 1983. For case studies on the impact of ilo standards on national social security, See for an overview: T. Dijkhoff, ‘The contested value of international social security standards in the European Union’ 14 European Journal of Social Security (2012) 184–​191; For the United Kingdom, Spain, Netherlands, Germany and France:  F. Pennings (Ed.), Between Soft and Hard Law; the Impact of International Social Security Standards on National Social Security Law (Kluwer Law International 2006); For Czech Republic and Estonia: T. Dijkhoff, International Social Security Standards in the European Union. The Cases of the Czech Republic and the Estonia (Intersentia 2011); For Greece:  M. Korda, The Role of International Social Security Standards; An in-​depth study through the case of Greece (Intersentia 2013).

International Standards Relevant for Social Security

203

principles found in national social security systems.73 The process of ‘naming and shaming’ has resulted in changes in national legislation in order to comply with ilo standards.74 Additionally, certain provisions of particular conventions have been granted direct effect by national courts. For example, in 2004, a Dutch court held that Article 5 of the ilo Convention No.118 had direct effect and required the export of benefits.75 By contrast, other Dutch courts have refused to grant direct effect of other convention provisions, such as Convention No. 121 and 128.76 Secondly, with regard to the impact and relevancy of ilo instruments for the EU, it should be said that the EU is not a party to the ilo and cannot ratify itself any ilo conventions. However, the EU has competence in the field of social policy.77 As a result, when the Member States want to ratify an ilo convention whose subject matter falls within the EU competence on social policy,78 the EU will adopt a decision authorising ratification of the ilo Convention also on its behalf.79 Besides the authorisation of the ratification of ilo conventions,80 the EU actually promotes the ratification as well as the implementation of ilo conventions by the Member States.81 Additionally, the EU 73 74

75 76 77 78 79

80 81

U. Kulke, ‘Overview of Up-​to-​Date ILO Social Security Conventions’, in F. Pennings (Ed.), Between Soft and Hard Law. The Impact of International Social Security Standards on National Social Security Law (Kluwer Law International 2006) 27 and ff. For example, France has changed its legislation after observations by the Committee of Experts on the Application of Conventions and Recommendations in order to comply with Convention No. 118. F.  Kessler & J-​P. Lhernould, ‘The Impact of Social Security Conventions:  France’, in F.  Pennings (Ed.), Between Soft and Hard Law; the Impact of International Social Security Standards on National Social Security Law (Kluwer Law International 2006) 156. CRvB 14 March 2003, RSV 2003/​114, also in AB 2003/​189. CRvB 24 January 2001, AB 2001/​81. Article 151 tfeu. Opinion 2/​91 Convention No. 170 of the ILO, ECLI:EU:C:1993:106, para.17. For example, such a practice arose in the context of the ratification of the ilo Convention No. 189 on Domestic Workers. See Council Decision of 28 January 2014 authorising Member States to ratify in the interests of the European Union, the Convention concerning decent work for domestic workers, 2011, of the International Labour Organisation (Convention No 189), 2014/​51/​EU, [2014] OJ L32/​32. For a comment on that practice, see S.  Peers, ‘Can EU law make an effective contribution to the prohibition of forced labour by the ILO?’, 16 April 2014, available at http://​eulawanalysis.blogspot.it/​2014/​04/​ can-​eu-​law-​make-​effective-​contribution.html, last accessed on 31 May 2019. The legality of the authorization process for the ratification of international conventions to which the EU is not a party has been confirmed by the Court of Justice in the OIV case. See Case C-​399/​12 Germany v Council, ECLI:EU:C:2014:2258. See for example the call of the European Parliament in 2009 for more ratification and implementation of ilo Conventions by the Member States. European Parliament,

204 

Chapter 4

can use ilo conventions such as inspirational guidelines when proposing and adopting Union acts. In its 2012 Communication on the External Dimension of EU Social Security Coordination, the European Commission has emphasised the work of international organisations in the field of social security coordination, referring explicitly to the work of the ilo. The European Commission has expressed its will to work closer with the ilo in order to promote coherency with regard to social protection at international level.82 This reference to work of the ilo and its instruments is not new at EU level. Since the Treaty of Amsterdam, Article 117 EC Treaty (now Article 151tfeu) refers to the European Social Charter which itself has to comply with, inter alia, ilo Convention No 102. In order to reinforce the importance of ilo standards and to establish a close cooperation with the ilo, the EU concluded a strategic partnership with the ilo in 2004.83 Hence, from both national and EU’s perspectives, it can be concluded that ilo instruments are relevant for the field of social security coordination. 3

Council of Europe’s Instruments

Created in 1949, the Council of Europe is the biggest international organisation for the defence of human rights in Europe. The Council of Europe has 47 Members, 28 of which are Member States of the EU. The Council of Europe is not a specialised organisation in the field of social security. However, the Council of Europe adopted several instruments either setting minimum standards in the field of social security or instruments dealing specifically with social security coordination. The Council of Europe’s instruments on social security coordination are: the two European Interim Agreements on Social Security (1953), the European Convention on Social Security (1972), and the European Convention on Medical and Social Assistance (1953).

‘Resolution on the Situation of Fundamental Rights in the European Union 2004–​2008’, INI/​2007/​2145, point 153. 82 European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 9. 83 European Commission and ilo, ‘Memorandum of Understanding concerning the Establishment of a Strategic Partnership between the International Labour Organisation and the Commission of the European Communities in the field of Development’, 15.07.2004 Brussels and 16.07.2004 Geneva.

International Standards Relevant for Social Security

205

Concerning the instruments that set minimum standards in the field of social security, the Council of Europe adopted the European Code on Social Security (1964) and its revised version (1990), as well as the European Social Charter (1961). Additionally, all Members of the Council of Europe have ratified the European Convention for the Protection of Human Rights and Fundamental Freedoms (‘echr’) (1950). Compared to all the other international instruments presented in this research, violations of the echr can be brought up to a judicial body: the European Court of Human Rights (‘ECtHR’). Although the echr does not contain an explicit reference to social security, Article 1 of Protocol 1 of the echr has been interpreted by the ECtHR has also comprising social security benefits.84 Council of Europe’s Instruments on Social Security Coordination The Two European Interim Agreements and the European Convention on Social Security The two European Interim Agreements on Social Security were signed in 1953.85 As their names indicate, the Interim Agreements were seen from their very beginnings as being temporary until a larger agreement could be achieved in the field of social security.86 While the structure and content of the Interim Agreements are similar, their material scopes are different. One concerns old-​age, invalidity and survivors’ benefits (long-​term benefits) while the other one is about short-​term benefits. The reason for separating the benefits into two instruments was that the Member States of the Council of Europe were reluctant to accept rules on the coordination of long-​term benefits. The reluctance of the Member States to have coordination rules on long-​term benefits has however been proven wrong in practice. Indeed, when a Member State ratified one of the two Interim Agreements, it also ratified the other.87 Currently, 21 Member States of the Council 3.1 3.1.1

84 85 86 87

Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01. European Interim Agreement on Social Security Schemes relating to Old Age, Invalidity and Survivors, Paris, 11 December 1953; European Interim Agreement on Social Security other than Schemes for Old Age, Invalidity and Survivors, Paris, 11 December 1953. A larger agreement was concluded with the European Convention on Social Security but, due to its low ratification rate, the Interim Agreements are still the relevant instruments to consider. G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 103.

206 

Chapter 4

of Europe have ratified the two Interim Agreements. All the countries selected as case studies for this research and who are Member States of the Council of Europe, i.e. Belgium, Germany, the Netherlands and Turkey, have ratified it.88 It should be noted that the personal scope of the Interim Agreements is limited to nationals of the Contracting Parties. For the purpose of this research, this means that the two Interim Agreements are not applicable with regard to Indian and American migrant workers. In terms of social security coordination rules, the Interim Agreements provide mainly for equal treatment of the nationals of the Contracting Parties. The principle of equal treatment between nationals of the Contracting Parties is emphasised in the Preamble of both Interim Agreements.89 Also, Article 2 of both Interim Agreements provide for equal treatment of nationals of any of the Contracting Parties in relation to the grant of social security benefits. Article 3 of both Interim Agreements concern equal treatment of nationals of the Contracting Parties in the application of bilateral or multilateral agreements concluded by two or more of the Contracting Parties. Article 8 further indicates that the bilateral or multilateral agreements to which Article 3 applies are set out in Annex ii. Hence, a Turkish national should be able to benefit from the social security agreement between Belgium and Germany under the same conditions as a Belgian or a German would.90 In practice, and for the purpose of this research, this provision probably does not have much relevance anymore as third-​country nationals moving between Member States can rely on the more favourable provisions of the EU Regulation 1231/​2010.91 The European Convention on Social Security is the successor of the two European Interim Agreements on Social Security. Signed in 1972 and entered into force in 1977 after three ratifications. The succession of the European Convention on Social Security is partial as only eight Member States of the Council of Europe ratified it.92 The low number of ratifications can be explained by the comprehensiveness of the European Convention on Social Security. 88 89 90 91 92

Belgium (1957), Germany (1956), the Netherlands (1955) and Turkey (1967). In the preamble of the European interim agreements, the ilo Conventions are cited as authoritative instruments recognizing the principle of equal treatment. The general Convention on social security between Germany and Belgium from 1957 is listed in Annex ii of the Interim Agreements. On the relationship between Member States’ bilateral agreements and the EU Regulation, see Section 1.3.7 of Chapter 2 on pp.50–​58. Austria (1977), Luxembourg (1977), The Netherlands (1977), Turkey (1977), Portugal (1983), Belgium (1986), Spain (1986), Latvia (1990). Additionally, five States have signed it without following ratification: Czech Republic (signed in 2002), France (signed in 1972), Greece (signed in 1977), Ireland (signed in 1979), Republic of Moldova (signed in 2002).

International Standards Relevant for Social Security

207

The European Convention on Social Security is a social security coordination instrument largely inspired by Regulation 1408/​71 which was drafted around the same time.93 The European Convention on Social Security applies to maternity and sickness benefits, invalidity benefits, old-​age benefits, survivors’ benefits, work injuries benefits, death grants, unemployment benefits and family benefits.94 The idea of the European Convention on Social Security was to replace any bilateral or multi-​lateral agreement on social security coordination concluded by two or more Contracting States.95 This was however not applicable to any of the agreements adopted on the basis of the eec Treaty.96 This means that it would not have replaced Regulation 1408/​71 nor, for example, Decision 3/​80 with Turkey. In any case, due its limited number of ratifications (eight) and considering that it contains the same type of provisions as Regulation 1408/​71,97 the relevance of the European Convention on Social Security is limited for the purpose of this research. 3.1.2 The European Convention on Social and Medical Assistance The European Convention on Social and Medical Assistance is unique in the sense that it is the only multilateral agreement on public assistance ever concluded. It was signed in Paris in 1953 and entered into force in 1954. Currently, 18 Member States of the Council of Europe have ratified it.98 Drafted at the same time as the European Interim Agreements, it was intended to complement it.99 93

94 95 96 97 98

99

G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 105; P. Schoukens, ‘Acceding to the multilateral co-​ordination convention on social security:  consequences for the social security legislation of the involved SISP-​parties (Albania, Croatia, BIH, Kosovo, Serbia and Montenegro)’. (sisp Programme, Council of Europe 2006) 4. Article 2(1) of the European Convention on Social Security. Article 5 of the European Convention on Social Security. Article 6(2) of the European Convention on Social Security. Regulation 1408/​71 was replaced by Regulation 883/​2004 which was extensively discussed in Chapter 2 of this research, pp.34–​58. For the purpose of this research, it is interesting to note that Belgium (1956), Denmark (1954), Estonia (2004), France (1957), Germany (1956), Greece (1960), Ireland (1954), Italy (1958), Luxembourg (1958), Malta (1969), the Netherlands (1955), Portugal (1978), Spain (1983), Sweden (1955), the United Kingdom (1954) and also Turkey (1977) have ratified the European Convention on Social and Medical Assistance. G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009) 104.

208 

Chapter 4

According to its preamble, the European Convention on Social and Medical Assistance sets out the principle of equal treatment between nationals of the Contracting Parties in the field of social and medical assistance. In that regard, Article 1 also provides that the Contracting Parties should treat nationals of the Contracting Parties who are lawfully present in the territory to which this Convention applies and who are without sufficient resources, on a par with its own nationals with regard to social and medical assistance provided by the domestic legislation. The European Convention on Social and Medical Assistance is limited to equal treatment in social and medical assistance, it does not provide for any particular assistance to be provided by the Contracting Parties. On 19 December 2011, Germany made a reservation concerning Article 1 of the European Convention on Social and Medical Assistance stating that it does not undertake to grant to the nationals of other Contracting Parties, equally or under the same conditions as to its own nationals, assistance provided in the Federal Social Assistance Act as well as benefits provided in Book ii of the Social Code (Basic Income Support for Jobseekers) and assistance as provided in Book xii of the Social Code (Social Assistance).100 These reservations had consequences in several judgments of the European Court of Justice: Alimanovic101 and Garcia-​Nieto.102, 103 In Alimanovic, the claimants were Swedish nationals of Bosnian origin who were lawful resident in Germany and received basic support income for jobseekers in Germany due to the principle of non-​ discrimination found in Article 1 of the European Convention on Social and Medical Assistance.104 However, due to the reservation made by Germany with regard to the application of Article 1 of the Convention, the benefits were withdrawn.105 The case was then referred by the German Federal Social Court to the European Court of Justice in order to know whether the principle of equal treatment found in EU law could preclude the withdrawal of the benefits. The 100 Annex ii on the Reservations formulated by the Contracting Parties to the European Convention on Social and Medical Assistance, Paris, 11 December 1953 (updated on 19 December 2011). It should be noted that a similar reservation exists for Belgium. 101 Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597. 102 Case C-​299/​14 Garcia-​Nieto, ECLI:EU:C:2016:114. 103 Although the Dano case was about a similar issue -​i.e. the refusal to grant basic income support for jobseekers to an economically inactive EU citizen who has been residing for more than three months but less than 5  years in Germany-​there was no reference to the European Convention on Social and Medical Assistance and the reservation made by Germany in the Opinion of the Advocate General nor in the judgment of the Court. Advocate General Opinion in Case C-​333/​13 Dano, ECLI:EU:C:2014:341; Case C-​333/​13 Dano, ECLI:EU:C:2014:2358. 104 Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597, para.29. 105 Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597, para.30.

International Standards Relevant for Social Security

209

Court found that EU law could not preclude the national decision to withdraw benefits which were aimed at covering minimum subsistence costs necessary to lead a life in keeping with human dignity.106 The reasons were that, despite the fact that those benefits were considered as ‘special non-​contributory benefits’ within the scope of Regulation 883/​2004, they also fell within the scope of ‘social assistance’ under Article 24(2) of Directive 2004/​38.107 In that regard, Article 24(2) of Directive 2004/​38 allows derogation from the equal treatment provision for those ‘social assistance’ benefits.108 In Garcia-​Nieto, the same type of benefits (basic income support for jobseekers) was refused to Spanish nationals residing lawfully in Germany for less than three months. Due to the reservation made by Germany, Article 1 of the European Convention on Medical and Social Assistance could not give a right to social assistance to the Garcia-​Nieto family.109 Concerning the question as to whether such a refusal to grant them social assistance was precluded by EU law, the Court held that Germany could rely on the derogation in Article 24(2) of Directive 2004/​38 in order to refuse to grant the social assistance sought.110 These cases show that reliance on Article 1 of the European Convention on Social and Medical Assistance could give social assistance rights to persons who are lawfully resident for less than 5 years in an EU Member State whereas the grant of social assistance rights would not be required under EU law. Article 2 defines assistance as meaning any form of assistance granted by the laws of the Contracting Parties to persons without sufficient resources as means of subsistence and necessary care. Assistance within the meaning of the European Convention on Social and Medical Assistance does not concern non-​contributory pensions or benefits paid in respect of war injuries. Pursuant to Article 4, if a Contracting Party grants a benefit, it must bear the costs linked to that social or medical assistance. Hence, it is not the Contracting Party of the nationality of the person which bears the costs of the assistance but rather the Contracting Party who provides the assistance. Furthermore, Article 6(a) provides that the need for social assistance should not be a valid ground for the repatriation of a national of a Contracting Party who is lawfully resident in another Contracting Party. Article 7(a) sets exceptions to that rule in cases where a national of a Contracting Party has not been resident for a continuous period of 5 years, is fit in terms of health for transport, and has no close ties 1 06 107 108 109 110

Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597, paras. 45–​46 & para.63. Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597, paras.43–​44. Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597, para.46 & paras. 57–​58. Case C-​299/​14 Garcia-​Nieto, ECLI:EU:C:2016:114, para.31. Case C-​299/​14 Garcia-​Nieto, ECLI:EU:C:2016:114, para.43.

210 

Chapter 4

with the country of residence. In the context of a preliminary ruling to the European Court of Justice, in Martinez Sala, the referring court pointed out to the Court that Mrs. Sala could not be deported from Germany on the sole grounds that she asked for social assistance, thereby referring to Article 6(a) of the European Convention on Social and Medical Assistance.111 Mrs. Sala was lawfully resident in Germany but did not possess a certificate of residence required by the German authorities to benefit from child-​raising allowances. However, the Court found that a national of a Member State lawfully residing in the territory of another Member State fell within the ambit of the Treaty provisions and could rely on the principle of non-​discrimination on the ground of nationality found in the Treaty.112 Consequently, the Court found that Union law precluded Germany from requiring proof of residence for being granting child benefits for nationals of other Member States residing lawfully in Germany and did not require such a proof for German nationals in a similar situation.113 Council of Europe’s Instruments Setting Minimum Standards Relevant for the Field of Social Security 3.2.1 The European Code of Social Security The European Code of Social Security and its Protocol provide for minimum standards in the field of social security. The purpose of the European Code of Social Security is to harmonise the national social security systems in order to prove for a minimum floor of social protection.114 The idea of adopting minimum standards in order to improve social and economic conditions of people had already been discussed in 1949 by the Consultative Assembly of the Council of Europe. While the Council of Europe was working on a draft of the European Code of Social Security, the ilo adopted Convention No. 102 on Social Security Minimum Standards. The Council of Europe then decided to base the European Code of Social Security upon ilo Convention No. 102.115 Ultimately, the European Code of Social Security was signed in 1964 and entered into force in 1968. The European Code of Social Security has been ratified by 21 Member 3.2

1 11 112 113 114

Case C-​85/​96 Martinez Sala, ECLI:EU:C:1998:217, para.14. Case C-​85/​96 Martinez Sala, ECLI:EU:C:1998:217, paras.58–​62. Case C-​85/​96 Martinez Sala, ECLI:EU:C:1998:217, para.65. J. Nickless, European Code of Social Security. Short Guide (Council of Europe Publishing 2002) 7. 115 S. Günter Nagel & F.  R. Kessler, Social Security Law, Council of Europe (Kluwer Law International 2010)  79–​80. For a detailed overview of the relationship between the ilo Convention No. 102 and the European Code of Social Security, See C. Villars, ‘Social security standards in the Council of Europe: the ILO influence’ 118 International Labour Review (May-​June 1979) 343–​354.

International Standards Relevant for Social Security

211

States of the Council of Europe. For the purpose of this research, it is interesting to note that Belgium (1969), Germany (1971), the Netherlands (1967) and Turkey (1980) all ratified it. The European Code of Social Security was later revised in 1990116 but has not entered into force yet due to a lack of ratification.117 The Netherlands is the only Member State of the Council of Europe which has ratified the Revised European Code. Therefore, the European Code of Social Security from 1964 remains the relevant instrument to be discussed. The standards provided by the European Code of Social Security are exactly the same as the standards provided in the ilo Convention No.102.118 The main difference is that, under the European Code of Social Security, six of the nine branches of social security119 must be adhered to when a State ratifies the Code.120 Also, the supervision mechanism under the European Code of Social Security is very similar to the supervision mechanism under the ilo Convention No. 102.121 Hence, the collaboration between the ilo and the Council of Europe is very strong when it comes to ensure the compliance of these instruments. The Contracting Parties must submit annual reports on compliance with the European Code to the Secretary-​General of the Council of Europe who forwards those reports to the ilo which will then transmit the reports to the Committee of Experts on the Application of Conventions and Recommendations.122 While the ilo Committee of Experts drafts a conclusion on compliance, the decision as to whether the Contracting State has complied with its obligations under the European Code remains in the hands of the Committee of Ministers.123 Apart from this political supervisory mechanism, there is no judicial enforcement of the European Code and its Protocol. Additionally, the 1 16 European Code of Social Security (Revised), Rome, 6th November 1990. 117 There needs to be at least two ratifications for the Revised European Code of Social Security to enter into force (Article 84 of the Revised European Code of Social Security). 118 M. Mikkola, ‘The development of European social security standards’, in F.  Pennings & G.  Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 151. 119 As a reminder, the nine branches of social security are: sickness benefits, medical care benefits, unemployment benefits, work injury benefits, old-​age benefits, survivors’ benefits, family benefits, maternity benefits, and invalidity benefits. 120 Under the ilo Convention No.102, only three branches need to be accepted by the State ratifying the Convention. 121 For a detailed discussion about the supervision of the European Code of Social Security, See T.  Dijkhoff, ‘Supervision of social security standards:  Between law and politics’ in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 178–​181. 122 Article 74 of the European Code of Social Security. 123 Article 75 of the European Code of Social Security.

212 

Chapter 4

national courts of the States that have ratified the European Code of Social Security and its Protocol usually refuse to consider those instruments as being able to produce direct effect.124 3.2.2 The European Social Charter The European Social Charter is an international human rights instrument guaranteeing social and economic rights. Despite its general nature, it has been described as a ‘ground-​breaking’ instrument as it was the first international instrument containing legally binding obligations to respect social and economic rights.125 The idea behind the European Social Charter was to complement the European Convention on Human Rights (‘echr’) dealing with civil and political rights. However, the European Social Charter did not gain the same authority as its sister.126 Enacted in 1961, the European Social Charter entered into force four years later and was subsequently revised in 1996. The ratification of the European Social Charter was a relatively quick process due to it being possible for states to ratify only certain parts.127 Indeed, there are seven core provisions of which only five must be ratified.128 It should be noted that all Member States have partly or entirely ratified the European Social Charter.129

124 P. Schoukens, EU Social Security Law: The Hidden ‘Social’ Model. Inaugural Address delivered at Tilburg University on Friday, February 19, 2016, 15; S. Günter Nagel, ‘L’exécution des arrêts de la Cour européenne des Droits de l’Homme en matière de sécurité sociale’, in J. Van Langendonck (Ed.), The right to social security (Intersentia 2007) 246. 125 C. O’Cinnéide, ‘Migrant Rights under the European Social Charter’, in C.  Costello & M.  Freedland (Eds.), Migrants at Work:  Immigration and Vulnerability in Labour Law (Oxford Scholarship Online 2014) 282. 126 C. O’Cinnéide, ‘Migrant Rights under the European Social Charter’, in C.  Costello & M.  Freedland (Eds.), Migrants at Work:  Immigration and Vulnerability in Labour Law (Oxford Scholarship Online 2014) 282. 127 This possibility of partial ratification is also applicable for the revised version of the European Social Charter. Ten articles or forty-​five paragraphs minimum of the Part ii must be ratified in order consider the ratification valid (Article 20 of the European Social Charter). 128 The seven core provisions are Article 1 (right to work), Article 5 (right to organise), Article 6 (right to bargain collectively), Article 12 (right to social security), Article 13 (right to social and medical assistance), Article 16 (right for the family to social, legal and economic protection), Article 19 (right of migrant workers and their families to protection and assistance). 129 Only France and Portugal accepted to ratify the full text of the European Social Charter. All the other Member States have ratified only certain parts of it. Additionally, for the purpose of this research, it is interesting to note that Turkey ratified the revised version of the European Social Charter in 2007.

International Standards Relevant for Social Security

213

The importance of the European Social Charter can also be attributed to the role played by the decisions of the European Committee of Social Rights.130 Instituted in 1995, the European Committee of Social Rights is the monitoring organ of the European Social Charter and hears collective complaints. The European Committee of Social Rights is an organ composed of 15 experts elected by the Committee of Ministers and one observer from the ilo who assists the experts. As regards its supervisory tasks, the Committee functions based on a reporting procedure and on a collective complaints procedure. Each Contracting State must submit periodic reports to the European Committee of Social Rights. Those reports contain answers to questions from the Committee and/​or details of actions taken to ensure compliance with the European Social Charter. The Committee examines those State’s reports as well as reports from the ilo, civil societies, employer’s organisations and trade unions. Based on the information received, the European Committee of Social Rights draws a reasoned conclusion. It is however still the Committee of Ministers who drafts recommendations to the Contracting States. That possibility has been exercised by the Committee of Ministers with great cautiousness due to its political sensitivity.131 The other possibility to ensure compliance of Contracting States with the European Social Charter is via the collective complaints procedure.132 Under this collective complaints procedure, international organisations or national representatives of employers and trade unions, or accredited ngo’s have the right to submit complaints concerning the unsatisfactory application of the European Social Charter.133 The collective complaints procedure does not concern the redress of an individual case but rather the redress of violations of social rights using the assessment of legislation and general practices.134 The 130 G. Katrougalos, ‘Social security in the ‘case law’ of the Social Rights Committee’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 84. 131 K. Fuchs, ‘The European Social Charter: Its Role in Present-​Day Europe and Its Reform’, in K. Drzewicki, C. Krause & A. Rosas (Eds.), Social Rights as Human Rights: A European Challenge (Institute for Human Rights, Åbo Akademi University 1994)  151; G.  Katrougalos, ‘Social security in the ‘case law’ of the Social Rights Committee’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 86. 132 Only 13 Contracting States are bound by this procedure as they have ratified the 1995 Additional Protocol providing for a system of collective complaints. Those States are France, Greece, the Netherlands, Italy, Croatia, Ireland, Norway, Finland, Belgium, Cyprus, Czech Republic, Portugal, Sweden. 133 Article 1 of the Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Strasbourg, 9th November 1995. 134 SAIGI-​Syndicat des Hauts Fonctionnaires v France, Complaint No.29/​2005, European Committee on Social Rights, June 14 2005.

214 

Chapter 4

proceedings are in the form of exchange of written argument.135 The European Committee of Social Rights may decide to hold a hearing of the parties.136 Based on the information received, the European Committee of Social Rights should draft a report and transmit it to the Committee of Ministers.137 It is then the Committee of Ministers who adopts a recommendation to the Contracting State concerned.138 The personal scope of the European Social Charter is somewhat problematic.139 Due to its complementarity with the echr and the wording of its Preamble, one may think that the European Social Charter has universal application. However, the first paragraph of the Appendix curtails the scope of application to nationals of the Contracting States. In addition, to fall under the personal scope of the European Social Charter, those nationals must be either ‘lawfully resident or working regularly within the territory of Contracting State c­ oncerned’. Hence, it seems that nationals of Contracting States who are unlawfully resident cannot benefit from the provisions of the European Social Charter. However, in the collective complaint fidh v. France,140 and later in Defence for Children International v. Netherlands,141 the European Committee of Social Rights found that the core provisions relating to human dignity apply to third-​country nationals, even those who are unlawfully resident in the territory of a Contracting State. That finding means that provisions on emergency healthcare, shelter, and social assistance apply to third-​country nationals irrespective of their immigration status.142 For access to other social benefits, lawful residence might be required by the Contracting States. The right to social security can be found in Article 12 of the European Social Charter. Article 12 of the European Social Charter covers the traditional nine 1 35 136 137 138 139

Article 7 of the 1995 Additional Protocol. Article 7(4) of the 1995 Additional Protocol. Article 8 of the 1995 Additional Protocol. Article 9 of the 1995 Additional Protocol. For a complete analysis on the textual and systematic interpretation of the scope of the European Social Charter, see M. Mikkola, ‘Social Human Rights of Migrants Under the European Social Charter’ 10 European Journal of Social Security (2008) 36–​38; M. Mikkola, ‘Common denominators of European social security’, in J. Van Langendonck (Ed.), The right to social security (Intersentia 2007) 237. 140 International Federation of Human Rights Leagues (FIDH) v.  France, Complaint No.14/​ 2003, European Committee on Social Rights, November 3 2004. 1 41 Defence for Children International (DCI) v. Netherlands, Complaint No.47/​2008, European Committee on Social Rights, October 20 2009. 142 C. O’Cinnéide, ‘Migrant Rights under the European Social Charter’, in C.  Costello & M.  Freedland (Eds.), Migrants at Work:  Immigration and Vulnerability in Labour Law (Oxford Scholarship Online 2014) 291.

International Standards Relevant for Social Security

215

branches of social security:  medical care, sickness benefits, maternity benefits, unemployment benefits, old-​age benefits, invalidity benefits, employment injury benefits, family benefits, and survivors’ benefits. Additionally, the European Committee of Social Rights has interpreted the concept of social security under Article 12 as including social assistance.143 Article 12 provides that Contracting States should establish or maintain a system of social security.144 It also provides that the standards of the social security systems of the Contracting States should be at least equal to the standards145 provided by the ilo Convention No. 102 on Minimum Standards of Social Security.146 Article 12(3) requires Contracting States to raise progressively their system of social security.147 Additionally, Article 12(4) provides for the right to equal treatment of nationals of the Contracting States in relation to social security. The method -​whether it be bilateral, multilateral or unilateral-​as to ensure equal treatment is left to the Contracting States.148 In

1 43 European Committee of Social Rights, Conclusions vii, 74 (France). 144 In the last years, the majority of the collective complaints concerning an alleged violation of Article 12 of the European Social Charter came from Greece in relation to the lowering of social security benefits after the economic crisis. The response of the European Committee of Social Rights has been consistent in holding that the cumulative effects of the restrictive measures taken by Greece were in violation of Article 12(3) of the European Social Charter. See, for example, Federation of employed pensioners of Greece (IKA-​ETAM) v.  Greece, Complaint No.76/​2012, European Committee on Social Rights, December 7 2012; Pensioners’ Union of the Athens-​Piraeus Electric Railway (I.S.A.P.) v. Greece, Complaint No.78/​2012, December 7 2012.For a more detailed discussion on the recent ‘case law’ of the Committee, see G. Katrougalos, ‘Social security in the ‘case law’ of the Social Rights Committee’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 84–​102. 145 In the first version, the minimum standards were those of the European Code of Social Security. 146 Here it should be noted that it is not necessary for the Contracting States to ratify the ilo Convention No. 102 in order to comply with its standards. Indeed, the European Committee of Social Rights found that Finland complied with the standards of the ilo Convention No.102 even though it had not ratified it, but it had ratified other conventions. See European Committee of Social Rights, Conclusions xiii-​3, 354 (Finland). 147 The level of reference for analysing the progress of the Contracting States is the standards of the ilo Convention No.102. If a Contracting State does not respect the standards of the ilo Convention No.102, the European Committee of Social Rights consider that the Contracting State does not respect Article 12(3) of the European Social Charter. See European Committee of Social Rights, Conclusions iii, 63 (Cyprus); European Committee of Social Rights, Conclusions iv, 82 (Austria). 148 European Committee of Social Rights, Conclusions xiii-​ 2, 122 (Norway). A.  M. Swiatkowski, Charter of Social Rights of the Council of Europe (Kluwer Law International 2007) 275–​278.

216 

Chapter 4

the application of Article 12 (4), the Contracting States may require the completion of a prescribed period of residence before they have to grant the benefits to the nationals of the other Contracting States.149 However, the length of the prescribed residence period must be proportional to the objective pursued by the Contracting State and should not exceed what is necessary.150 Article 12 (4)(a) provides for equal treatment of nationals of the Contracting States in respect of social security, including the retention of benefits arising out of social security legislation, whatever movements the persons protected may undertake between the territories of the Parties. This provision applies to nationals of the Contracting States who are no longer residing in the territory of the Contracting State that should grant them equal treatment but who resided or worked there and acquired social security rights.151 Concerning the right to child benefit, the European Committee of Social Rights considers that the requirement that a child resides on the territory of the Contracting State granting the benefit is in compliance with Article 12(4).152 Additionally, the European Committee of Social Rights accepts that if a Contracting State provides for the payment of family benefits for children residing abroad, the amount of benefits is calculated on the basis of the costs of the place of residence of the children.153 Furthermore, Article 12(4) (b) provides for equal treatment of nationals of the Contracting States with regard to the granting, maintenance and resumption of social security rights by such means as the accumulation of insurance or employment periods completed under the legislation of each of the Parties. This Article has been interpreted by the Committee as requiring the aggregation of periods of insurance.154 Articles 18 and 19 are provisions of the European Social Charter dealing exclusively with the rights of migrant workers.155 Those provisions are very 149 Appendix to the European Social Charter. Council of Europe, ‘Digest of the case law of the European Committee of Social Rights’ (2008) 92. 150 European Committee of Social Rights, Conclusions xiii-​4, 44 (Statement of Interpretation of Article 12); European Committee of Social Rights, Conclusions 2004, 171 (Estonia); European Committee of Social Rights, Conclusions 2004, 370 (Lithuania). 151 Appendix to the European Social Charter. Council of Europe, ‘Digest of the case law of the European Committee of Social Rights’ (2008) 92–​93. 152 European Committee of Social Rights, Conclusions 2006, 13 (Statement of Interpretation of Article 12(4). 153 European Committee of Social Rights, Conclusions xiii-​4, 44 (Statement of Interpretation of Article 12). 154 European Committee of Social Rights, Conclusions xiii-​4, 45 (Statement of Interpretation of Article 12). 155 In the last years, the majority of the collective complaints in relation to Article 19 of the European Social Charter concern the lack of social protection granted by Contracting

International Standards Relevant for Social Security

217

similar in the original and revised version of the European Social Charter.156 Articles 18 and 19 apply only to nationals of Contracting States, irrespective of their working status and the length of their stay.157 Article 18 is about the right to engage in gainful occupation in the territory of other Contracting States. Article 19 deals with the right of migrant workers and their families to receive protection and assistance. Concerning the coordination of social security, Article 19(3) provides that social services (public or private) of emigration and immigration countries should cooperate. Here again, the method of implementation of the coordination is left to the Contracting States. Nonetheless, Contracting States should aim at cooperating with countries of origin.158 The cooperation should be established regardless of the importance of the migratory flux159 and regardless of whether the cooperation is organised by private actors.160 Finally, for the purpose of this research, a brief word concerning the relevance of the European Social Charter for EU law must be given. The European Social Charter is referred to in the Treaties of the European Union. First, the European Social Charter is mentioned in the Preamble of the teu in the context of establishing the Union’s attachment to fundamental social rights as ­defined in the European Social Charter. Second, Article 151 tfeu refers to the European Social Charter to be kept in mind when the Union wants to take action in the field of social policies. Additionally, the Explanations relating to the EU Charter of Fundamental Rights link some articles of the EU Charter with some provisions of the European Social Charter. With relevance for this research, Article 34 of the EU Charter providing that the EU recognises and respects the entitlement to social security benefits and social services providing protection is based on, inter alia, Article 12 of the European Social Charter. Also, for relevance to this research, the European Social Charter is mentioned

156 157 158 159 160

States to members of the Roma community. See, for example, Médecins du Monde-​ International v. France, Complaint No.67/​2011, September 11 2012. The only difference is in Article 19 on the right of migrant workers and their families to protection and assistance where the promotion and facilitation of the teaching of the host State’s national language and the migrant’s mother tongue language has been added. Secretariat of the European Social Charter, ‘Migrant’s Rights in the European Social Charter’ (June 2006) 3. A. M.  Swiatkowski, Charter of Social Rights of the Council of Europe (Kluwer Law International 2007) 346–​348. European Committee of Social Rights, Conclusions iii, 91 (Norway); European Committee of Social Rights, Conclusions ix-​1, 106 (Netherlands). European Committee of Social Rights, Conclusions iv, 118–​119 (Great Britain); European Committee of Social Rights, Conclusions ix-​1, 106 (Netherlands).

218 

Chapter 4

in the EU Seasonal Worker Directive and the Long-​Term Residence Directive.161 Despite the many references to the European Social Charter in EU law, the level of protection is not necessarily the same. Indeed, the European Committee of Social Rights has found on many occasions that the principles, rules and obligations arising from EU law do not necessarily coincide with the principles, rules and obligations arising from the European Social Charter.162 There is no general presumption of conformity of legal acts and rules of the EU with the European Social Charter. This means that Member States who are Contracting States of the European Social Charter should always take full account of the commitments they have under the European Social Charter, even when they are implementing EU law.163 3.2.3 European Convention on Human Rights (‘echr’) Compared to the other instruments of the Council of Europe presented in the pages above, the echr is the only one that does not contain a textual reference to the right to social security. This is not surprising as the echr is an instrument protecting civil and political rights.164 However, the European Court of Human Rights (‘ECtHR’) has interpreted several provisions of the echr so as to apply in social security cases.165 Many provisions of the echr are therefore relevant to the field of social security: Article 1 Protocol 1 of the echr on the right to property,166 Article 3 echr on the prohibition of 161 Recital 44 of the Preamble of the Seasonal Worker Directive and Article 3(3)(c) of the Long-​Term Residence Directive. 162 See, for example, Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/​2012, July 3 2013, para.74. 163 See, for example, Confédération Générale du Travail (CGT) v. France, Complaint No. 55/​ 2009, June 23 2010, paras. 32 and 33. 164 In N v. the United Kingdom, the ECtHR held that ‘although many of the rights it contains have implications of a social or economic nature, the Convention is essentially directed at the protection of civil and political rights’. Judgment of 27 May 2008, N v. the United Kingdom, Appl. 26565/​05, para.44. 165 For the purpose of this research, it is not necessary to present the complete jurisprudence of the ECtHR on the provisions of the echr concerned with social security. Such a general and complete overview can be found in the work of K. Kapuy, D. Pieters & B.  Zaglmayer, Social Security Cases in Europe:  The European Court of Human Rights (Intersentia 2007). A shorter overview can be found in K. Kapuy, ‘Social security and the European Convention on Human Rights: How an odd couple has become presentable’ 9 European Journal of Social Security (2007) 221–​238. 166 Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00; Judgment 24 October 2013, Damjanac v. Croatia, Appl. 52943/​10; Judgment 28 April 2009, Rasmussen v. Poland, Appl. 38886/​05; Decision as to the admissibility of 10 April 2012, Susan V. Richardson v. the United Kingdom, Appl. 26252/​08.

International Standards Relevant for Social Security

219

torture,167 Article 8 echr on the right to respect for private and family life,168 Article 6 echr on the right to fair trial,169 and Article 14 echr on the prohibition of discrimination which must be taken in conjunction with another article.170 Additionally, compared to the other instruments of Council of Europe, it is difficult to classify the echr as an instrument relevant for either setting up minimum standards of social security or for the field of social security coordination. While the echr sets out minimum human rights standards, it can be said that its interpretation by the ECtHR has made it a relevant instrument both for setting up minimum standards in social security cases and for the specific field of social security coordination. 3.2.3.1

3.2.3.1.1

Article 1 Protocol 1 of the echr

Social Security as a ‘Possession’ under Article 1 Protocol 1

Article 1 Protocol 1 provides that everyone ‘is entitled to the peaceful enjoyment of his possessions’. The ECtHR has broadly interpreted the concept of ‘possession’, as encompassing ‘property right’.171 In the Müller case, in 1974, the ECtHR held that social security benefits were ‘possessions’.172 It was however unclear whether those benefits should

167 Judgment of 2 May 1997, D. v. the United Kingdom, Appl. 30240/​96; Decision as to the admissibility of 30 October 1998, N.A.D.C. v. Switzerland, Appl. 46553/​99; Decision as to the admissibility of 15 February 2000, S.C.C.  v.  Sweden, Appl. 9384/​81; Judgment of 10 May 2001, Z and others v. the United Kingdom, Appl. 29392/​95; Decision as to the admissibility of 23 April 2002, Aleksandra Larioshina v.  Russia, Appl. 56869/​00; Decision as to the admissibility of 18 June 2009, Antonina Dmitriyevna Budina v. Russia, Appl. 45603/​05. 168 Decision as to the admissibility of 4 January 2005, Valentina Pentiacova and Others v. Moldova, Appl. 14462/​03. 169 Decision as to the admissibility of 15 November 1983, Feldbrugge v. the Netherlands, Appl. 8562/​79; Decision as to the admissibility of 15 November 1983, Deumeland v. Germany, Appl. 9384/​81; Judgment of 26 November 1992, Lombardo v. Italy, Appl. 11519/​85. 170 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90; Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01; Judgment of 16 March 2010, Carson and others v. The United Kingdom, Appl. 42184/​05. 171 A. Grgić, Z.  Mataga, M.  Longar & A  Vilfan, ´The right to property under the European Convention on Human Rights: a guide to the implementation of the European Convention on Human Rights and its protocols´, (Human Rights Handbooks, No. 10, Council of Europe Publishing 2007) 7; R.C.A. White & C. Ovey, The European Convention on Human Rights (Oxford University Press 2010) 481. 172 Decision as to the admissibility of 16 December 1974, Müller v. Austria, Appl. 5849/​72.

220 

Chapter 4

be directly linked to paid contributions or could also cover social assistance cases.173 In 1996, the ECtHR held in the Gaygusuz case174 that social benefits –​ in this case, an emergency assistance benefit-​could be seen as a pecuniary right for the purpose of Article 1 Protocol 1 ‘without it being necessary to rely on the link between entitlement (…) and the obligation to pay ‘taxes or other contributions’.175 This judgment did not put an end to the uncertainties with regard to the inclusion of social assistance within the concept of ‘possession’ as, in Gaygusuz, the benefit in question was actually partly linked to the payment of contributions.176 The confirmation of the inclusion of non-​contributory benefits within the ambit of Article 1 Protocol 1 finally came ten years later in the landmark Grand Chamber judgment in Stec.177 In this case, the social security benefits were non-​contributory benefits funded by a system of general taxation rather than by the National Insurance Scheme. The ECtHR chose to examine afresh the scope of Article 1 Protocol 1 and interpreted it dynamically taking into account the changing conditions within the Contracting States.178 It held that a social security benefit falls under the scope of Article 1 Protocol depending on whether ‘the individual has an assertable right under domestic law to a welfare benefit’.179 In other words, a benefit will fall within the ambit of Article 1 Protocol 1 if the payment of that benefit is provided by law, irrespective of its financing method.180 173 L. Slingenberg, ‘Social security in the case law of the European Court of Human Rights’, in F.  Pennings & G.  Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 55. 174 Judgment of 16 September 1996, Gaygusuz v.  Austria, Appl. 17371/​90. For a detailed discussion on this case, see H.  Verschueren, ‘EC social security coordination excluding third country nationals:  still in line with fundamental rights after the Gaygusuz judgment?’ Common Market Law Review (1997) 991–​1017; G. Vonk, ‘Social security and property: Gaygusuz and after’ in J.P. Loof, H. Ploeger & A. van der Steur (Eds.), The Right to Property, the Influence of Article 1 Protocol No.1 ECHR on Several Fields of Domestic Law (E.M Meijers Instituut 2000) 145–​155. 175 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, para. 41. 176 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, para. 39. 177 Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01. 178 Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01, paras. 47–​50. 179 Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01, para.51. 180 It should be noted that the case law of the ECtHR has considered some welfare benefits to fall also under the scope of other echr provisions. For example, for welfare benefits related to family life such as child benefits or parental leave, the ECtHR has accepted that they fall under the scope of Article 8 echr. Judgment of 27 March 1988, Petrovic

International Standards Relevant for Social Security

221

Furthermore, ‘possessions’ within the meaning of Article 1 Protocol 1 refers either to existing possessions or to assets, including claims, for which the applicant has a ‘legitimate expectation’ that they will be realised.181 Hence, a pension entitlement can also be considered as a ‘possession’ under the meaning of Article 1 Protocol 1.182 This is the case when the pension entitlement is based on contributions paid183 or when the entitlement is based on an employment contract.184 Since the Stec case, whether a welfare benefit falls within the scope of Article 1 Protocol 1 does not seem to be questioned anymore.185 Indeed, the ECtHR does not discuss anymore the scope, instead it proceeded directly to the interference test.186 3.2.3.1.2

Obligation of the Contracting States under Article 1 Protocol 1: Non-​Interference

The right to peaceful enjoyment of one’s possessions under Article 1 Protocol 1 does not require the Contracting States to the echr to introduce a system of social security and to provide for social security rights.187 However, if they decide to have such a system, they must respect the obligations laid down in Article 1 Protocol 1. The ECtHR considers that Article 1 Protocol 1 enshrines three rules to be respected by the Contracting States to the echr. The first rule implies that there is a general principle of peaceful enjoyment of property. Under the second rule, the general principle of peaceful enjoyment of property can be deprived

181 182 1 83 184 185

186 187

v. Austria, Appl. 20458/​92; Judgment of 25 October 2005, Niedzwiecki v. Germany, Appl. 58453/​00; Judgment of 25 October 2005, Okpisz v. Germany, Appl. 59140/​00. Decision as to the admissibility of 9 December 2003, Meyne-​Moskalczuk v. the Netherlands, Appl. 53002/​99, para.1. See for example, Judgment of 22 October 2009, Apostolakis v. Greece, Appl. 39574/​07, para.27; Judgment of 3 March 2011, Klein v. Austria, Appl. 57028/​00, para.42. Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, paras. 39–​41. Decision as to the admissibility of 13 July 1988, Sture Stigson v. Sweden, Appl. 12264/​86. For an overview of the ECtHR’s approach after the Stec case concerning the scope of Article 1 Protocol 1, see A.E.M. Leijten, ‘From Stec to Valkov: possessions and margins in the social security case law of the European Court of Human Rights’ 13 Human Rights Law Review (2013) 309–​349. See for example, Judgment of 25 October 2011, Valkov and others v. Bulgaria, Appl. Appl. 2033/​04, 19125/​04, 19475/​04, 19490/​04, 19495/​04, 19497/​04, 24729/​04, 171/​05 and 2041/​05. The ECtHR has repeated that Article 1 Protocol 1 does not enshrines a right to acquire social security. For example, Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01, para.53; Judgment of 15 September 2009, Moskal v. Poland, Appl. 10373/​05, para.38.

222 

Chapter 4

if such a deprivation respects certain conditions. Finally, the third rule allows the Contracting States to control the use of property in accordance with the general interest. These three rules must be seen as connected. The second and third rules concern the interference by the Contracting States with the general principle of peaceful enjoyment of property constructed in the first rule. Therefore, the interference and its conditions must be construed in the light of the general principle enunciated in the first rule.188 An interference to someone’s possessions can be found in cases when the amount of benefit is reduced or discontinued.189, 190 If the amount of benefit is reduced or discontinued, it means that it was previously granted. The legal conditions for acquisition of a benefit must be clear, precise and foreseeable with regard to the specific legal requirements.191 If a person does not satisfy or ceases to satisfy the legal conditions for being granted the benefit, the ECtHR considers that there is no interference of the rights under Article 1 Protocol 1.192 In its recent Grand Chamber’s judgment of Bélané Nagy v. Hungary, the ECtHR however held that even when the applicant ceased to satisfy the legal conditions for being granted the benefit, an interference could still be found.193 In Bélané Nagy v. Hungary, the applicant benefited from disability pension from 2001 until 2010. In 2012, Hungary introduced a new law which had retrospective effect and under which the applicant was not entitled anymore to the disability pension. The ECtHR found this Hungarian law in violation of Article 1 Protocol 1 even though the applicant in fact ceased to satisfy the legal conditions for being granted the benefit anymore. The ECtHR justified its finding by the requirement of ‘cease to satisfy the conditions laid down in domestic law for being granted the benefit’ cannot be applied mechanically in situations where the complaint is precisely about the change of the legal conditions laid down in domestic law.194 The ECtHR found that the changes 188 Judgment 30 May 2000, Belvedere Alberghiera S.r.l. v.  Italy, Appl.31524/​96, para. 51; Judgment 26 July 2011, Iwaszkiewicz v. Poland, Appl. 30614/​06, para.40. 189 Judgment 28 April 2009, Rasmussen v. Poland, Appl. 38886/​05, para.71. 190 For a complete overview of the ECtHR jurisprudence until 2007 in cases of reduction, loss or refusal of granting social security benefits, See K. Kapuy, D. Pieters & B. Zaglmayer, Social Security Cases in Europe:  The European Court of Human Rights (Intersentia, 2007) 3–​11. 191 Judgment 24 October 2013, Damjanac v. Croatia, Appl. 52943/​10, para.90. 192 Judgment 24 October 2013, Damjanac v.  Croatia, Appl. 52943/​10, para.86; Judgment 28 April 2009, Rasmussen v. Poland, Appl. 38886/​05, para.76; Decision as to the admissibility of 10 April 2012, Susan V.  Richardson v.  the United Kingdom, Appl. 26252/​08, paras. 17–​18. 193 Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13. 194 Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13, para.98.

International Standards Relevant for Social Security

223

in domestic law imposed a condition whose consequences was not foreseeable during the relevant potential contributing period and could not have been possibly fulfilled by the applicant once the law entered into force. This combination of elements was considered by the ECtHR as difficult to reconcile with the rule of law and would render the rights guaranteed by the echr theoretical and illusory instead of practical and effective.195 The fact that the applicant had contributed to the insurance scheme and that she satisfied the contributory requirements until the new law entered into force was sufficient to find that the applicant had a legitimate expectation of being granted the benefit and therefore, the ECtHR considered the complete refusal to grant her the benefit as an interference under Article 1 Protocol 1.196 Finally, it should be noted that if the benefit is granted based on an error made by the State, the withdrawal of the benefit to correct the error is considered as an interference by the ECtHR.197 However, if the error originates from the person’s own fault or failure to provide the correct information, the withdrawal will not constitute an interference.198 In any case, if there is an interference, the ECtHR looks at whether that interference is justified or not. 3.2.3.1.3

Justification of an Interference under Article 1 Protocol 1

An interference by the State must be proportionate and justified by a legitimate objective serving the general interest.199 In cases of interference, the ECtHR tests whether a fair balance is struck between the general interests and the individual´s interests. However, the ECtHR does not even consider the test of balance of interests and finds directly a violation of Article 1 Protocol 1 if the interference results in a denial or withdrawal of the benefits and the individual had legitimate expectations to receive that benefit due to unclear legislation.200 Under the test of balance of interests, the Contracting States are left with a ‘wide margin of appreciation’ concerning general measures of economic and social strategy. Unless those measures are manifestly taken without reasonable foundation, the ECtHR respects the Contracting States’ policy choices.201 1 95 196 197 198 199 200 201

Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13, para.99. Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13, paras.99–​109. Judgment of 15 September 2009, Moskal v. Poland, Appl. 10373/​05, para.45. Judgment of 14 February 2012, B. v. the United Kingdom, Appl. 36571/​06, para.39. For example, Judgment 26 July 2011, Iwaszkiewicz v. Poland, Appl. 30614/​06, para.43. Judgment 24 October 2013, Damjanac v. Croatia, Appl. 52943/​10. Judgment of 12 April 2006, Stec and others v.  The United Kingdom, Appl. 65731/​01 and 65900/​01, para. 52; Judgment of 16 March 2010, Carson and others v. The United Kingdom, Appl. 42184/​05, para.61.

224 

Chapter 4

In the case of an excessive burden placed on the individual, the ECtHR does not hesitate to find a violation of the Convention. The excessiveness of the burden must actually be understood as referring to exceptionally unfair circumstances. An excessive burden is likely to be found when there is a complete denial of the pension right.202 It must be noted that, in the case of a change of legislation which renders the entitlement to a social benefit not possible anymore, the ECtHR has considered this lack of entitlement as a complete deprivation.203 In Bélané Nagy v.  Hungary, the applicant had received disability pension for a number of years until new conditions were added in the Hungarian law on disability pension. According to the new conditions created, the applicant could not receive the disability pension anymore. The ECtHR considered that the applicant was thereby deprived of her disability pension entitlements.204 The ECtHR then held that Hungary did not meet the requirement of proportionality in depriving the applicant of her disability pension entitlement. The elements that the ECtHR highlighted were that Hungary did not provide for any transitional measures, nor any other type of resources for the applicant who belonged to the vulnerable group of disabled persons, as well as the fact that the applicant always acted in good faith.205 On the other side of the spectrum, small reductions on the pension, not seriously affecting the standards of living of a family, are not likely to be deemed to place an excessive burden on the individual.206 Somewhere in the middle between complete deprivation and a small reduction, other situations of larger reductions in the pension right are not entirely clear. In the cases Maggio207 and Stefanetti,208 the applicants were Italian pensioners who had made their career and paid their contributions in Switzerland. Due to a change in Italian law and the method of calculation used by the Italian authorities, Maggio was deprived of 40 % of the pension to which he

202 See for example, Judgment of 12 October 2004, Kjartan Ásmundsson v.  Iceland, Appl. 60669/​00; Judgment of 22 October 2009, Apostolakis v. Greece, Appl. 39574/​07. 203 Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13. 204 Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13, para.123. 205 Judgment of 13 December 2016, Béláné Nagy v.  Hungary, Appl. 53080/​13, paras. 123–​125. 206 See for example, Judgment of 25 October 2011, Valkov and others v. Bulgaria, Appl. 2033/​ 04,19125/​04, 19475/​04, 19490/​04, 19495/​04, 19497/​04, 24729/​04, 171/​05 and 2041/​ 05. 207 Judgment of 31 May 2011, Maggio and others v. Italy, Appl. 46286/​09, 52851/​08, 53727/​ 08, 54486/​08 and 56001/​08. 208 Judgment of 15 April 2014, Stefanetti and others v.  Italy, Appl. 21838/​10, 21849/​10, 21852/​10, 21855/​10, 21860/​10, 21863/​10, 21869/​10 and 21870/​10.

International Standards Relevant for Social Security

225

would have been normally entitled and Stefanetti was deprived of 70%. When determining whether an excessive burden was placed on the applicants, the ECtHR reached an opposite conclusion in the two cases. In Maggio, no excessive burden was found.209 However, in Stefanetti, emphasising that the applicants lost more than half of their pension entitlements,210 the ECtHR found that there was an excessive burden placed on the applicants.211 Overall, in the cases of deprivation or reduction of social security rights, the ECtHR conducts a case-​by-​case analysis where it considers several elements determining whether a proportionate balance of interests has been conducted by the Contracting States. Such elements are, for example, the discriminatory nature of the loss of right; the absence of transitional measures; the situation where the applicant was faced, practically from one day to the next, with the total loss of her right, which constituted her sole source of income, and with poor prospects of being able to adapt to the change; the arbitrariness of the condition; as well as the applicant’s good faith.212 Finally, a word must be said about the territorial scope of Article 1 Protocol 1. As for all the provisions of the echr, it applies to everyone within the jurisdiction of the Contracting States.213 Hence, the Contracting States cannot justify refusing to grant social benefits to a third-​country national on the ground that it has not concluded a bilateral agreement on social security coordination with the third-​country national’s country of origin.214 The justification of lack of reciprocity between a Contracting State and a third country with whom a Contracting State has not concluded a bilateral agreement was considered as ‘unconvincing’ to the ECtHR as the Contracting States undertook, in ratifying the echr, to secure the rights and freedoms contained in the Convention ‘to everyone within their jurisdiction’.215

209 Judgment of 31 May 2011, Maggio and others v. Italy, Appl. 46286/​09, 52851/​08, 53727/​ 08, 54486/​08 and 56001/​08, para. 63. 210 Judgment of 15 April 2014, Stefanetti and others v.  Italy, Appl. 21838/​10, 21849/​10, 21852/​10, 21855/​10, 21860/​10, 21863/​10, 21869/​10 and 21870/​10, paras.58 and 60. 211 Judgment of 15 April 2014, Stefanetti and others v.  Italy, Appl. 21838/​10, 21849/​10, 21852/​10, 21855/​10, 21860/​10, 21863/​10, 21869/​10 and 21870/​10, para. 66. 212 Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13, para. 117. 213 In comparison, the EU Charter of Fundamental Rights does not have a limit of territorial scope which means that the EU Charter can apply to situations confined in territories outside the EU. 214 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, para. 51; Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.90. 215 Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98, para.49.

226 

Chapter 4

3.2.3.2

Article 14 echr Taken in Conjunction with Article 1 Protocol 1 or Article 8 echr Article 14 echr enshrines a prohibition of discrimination on grounds such as gender, race, colour, language, religion, political beliefs. Article 14 echr applies to the ‘enjoyment of the rights and freedoms set forth in this Convention’. This means that Article 14 echr needs to be applied with another provision of the echr or its Protocol. In the field of social security, Article 14 echr is applied together with Article 1 Protocol 1 or Article 8 echr for benefits concerned with the protection of family life (i.e. family benefits)216 or private life (i.e. disability benefits).217 Under Article 14 echr, the first step consists of showing that the claimant has a right to the social security benefit. In Stec, the ECtHR held that the relevant test to be considered in a claim based on Article 14 echr in conjunction with Article 1 Protocol 1 is ‘whether, but for the condition about which the applicant complains, he or she would have had a right, enforceable under domestic law, to receive the benefit in question’.218 The second step tests the existence of differential treatment. Differential treatment exists when persons in similar situations are treated differently by the State. Once a differential treatment is established, the justifications provided by the State for such differential treatment must be looked at. In that regard, the State must pursue a legitimate aim while balancing a ‘reasonable relationship of proportionality between the means employed and the aim sought to be realised’.219 The margin of appreciation concerning the justification for the differential treatment is usually rather wide in cases of measures of social and economic strategy.220 However, the margin of appreciation will vary depending on the grounds for discrimination. In the field of social security, the relevant grounds for discrimination are the grounds of nationality, immigration status, residence status, and gender. 216 For family benefits, see Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92; Judgment of 8 April 2014, Dhahbi v. Italy, Appl. 17120/​09. 217 For disability benefits, see Judgment of 2 Febuary 2016, Di Trizio v.  Switzerland, Appl. 7186/​09. 218 Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01, para.55. 219 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, para. 42; Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98, para.46; Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.81. 220 Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01, para. 52; Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.83.

International Standards Relevant for Social Security 3.2.3.2.1

227

Discrimination on the Ground of Nationality

In discrimination cases on the grounds of nationality, States have to produce very weighty reasons in order to justify differential treatment.221 In the landmark judgment of Gaygusuz, the applicant was a Turkish national living in Austria, who had worked there for several years and thereby had contributed to the Austrian social insurance system. Due to illness, he could not work anymore and asked the Austrian authorities for an advance on his retirement pension in the form of an emergency assistance. Such emergency assistance was not granted to him by the Austrian authorities on the sole basis that he did not possess Austrian nationality. First, the ECtHR noted that he had worked legally in Austria and contributed to the Austrian social security system on the same basis as an Austrian national.222 Then, the ECtHR refused to accept that the differential treatment was based on objective and reasonable reasons and thereby found a violation of Article 14 taken in conjunction with Article 1 Protocol 1.223 In Koua Poirrez, the applicant was a disabled person from the Ivory Coast who had been adopted by a French national. The applicant was refused disability benefits on the grounds that he did not have the French nationality nor had Ivory Coast a bilateral agreement with France on that social security coordination. Firstly, the ECtHR considered the applicant in a similar situation as a French national or a national from a country with whom France has an agreement on social security coordination.224 As in Gaygusuz, the ECtHR dismissed the reasons for discrimination advanced by the State and considered the differential treatment based on non-​objective and unreasonable justifications.225 It found the discrimination even more unreasonable due to the fact that the requirement of nationality was abolished in 1998 and that the French Cour de Cassation had already considered that requirement to violate Article 14 of the echr taken in conjunction with Article 1 Protocol 1.226 The same reasoning of providing very weighty reasons for any discrimination based on nationality was further reaffirmed in the latest cases on Article 14 echr together with Article 1 Protocol 1, Luczak v. Poland227 and Andrejeva v. Latvia.228 For example, in Andrejeva, the ECtHR considered that there was 221 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, para. 42; Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98, para.46. 222 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, para. 46. 223 Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90, paras. 50–​52. 224 Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98, para.48. 225 Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98, para.49. 226 Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98, para.48. 227 Judgment of 27 November 2007, Luczak v. Poland, Appl. 77782/​01, para.48. 228 Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.87.

228 

Chapter 4

a violation of Article 14 echr taken in conjunction with Article 1 of Protocol 1 as the Latvian authorities did not provided sufficient reasons to justify the difference in treatment. The differential treatment in Andrejeva consisted of the fact that the applicant had her pension calculated on the basis of periods of work completed in Latvia only, whereas that requirement of periods of work completed in Latvia only was not asked for in the calculation of the pension rights of Latvian nationals. The ECtHR accepted that this differential treatment pursued a legitimate aim which was the protection of the country’s economic system.229 However, there was no reasonable relationship of proportionality between that aim and the differential treatment.230 Concerning the argument brought by the Latvian Government that the recognition of periods of employment completed abroad was mainly an issue to be solved by bilateral agreements, the ECtHR responded that, while the conclusion of a bilateral agreement could help solve this issue, the State cannot escape its responsibility under Article 14 of the echr on the grounds that there is no bilateral agreement signed on this issue.231 Like in Koua Poirrez, the ECtHR did not accept the excuse of lack of bilateral agreements in order to justify discriminatory treatment. Overall, due to the very weighty reasons test, national social security measures excluding non-​nationals were always found in violation of Article 14 echr in conjunction with Article 1 Protocol by the ECtHR. 3.2.3.2.2

Discrimination on the Ground of Immigration Status

Discrimination on the grounds of immigration status arises when the person is discriminated due his/​her weak (or irregular) immigration status. Hence, the State does not discriminate against all non-​nationals but rather against those non-​nationals who do not have the legal status required by the State. For example, in Niedzwiecki and Okpisz,232 the differential treatments concerned a change in the German law which conditioned the entitlement to child benefits for non-​nationals to the possession of a permanent residence permit or a provisional residence permit. In both cases, the applicants were not in possession of such a residence permit and were therefore excluded from receiving child benefits. The ECtHR very briefly (in only one paragraph) considered that there were not sufficient reasons to justify the different treatment 2 29 230 231 232

Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.86. Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.89. Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para.90. Judgment of 25 October 2005, Niedzwiecki v. Germany, Appl. 58453/​00; Judgment of 25 October 2005, Okpizs v. Germany, Appl. 59140/​00.

International Standards Relevant for Social Security

229

concerning the entitlement to child benefits between non-​nationals who were in possession of a permanent residence permit and those who were not.233 In finding that there were no sufficient justifications for the discrimination, the ECtHR did not mention the ‘very weighty reasons’ test. The ECtHR explained in the Bah case when States were required to provide for very weighty reasons to justify discriminatory treatment and, on the contrary, when States were given a wider margin of appreciation.234 In Bah, the applicant claimed that she was subject to discriminatory treatment by the UK authorities as those authorities did not placed her on top of the priority list for public housing due to the fact that her son had a conditional leave to remain in the UK. The condition attached to her son’s legal status was that he should not have recourse to public funds. While recognizing that the applicant was treated differently than other persons who did not have a son subject to immigration control, the ECtHR held that the nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation left to the States.235 In regard to the nature of the status, the ECtHR noted that immigration status is, except for refugee status, an element of choice.236 In this case, the applicant chose to have her son join her in the UK knowing the conditions attached to her son’s status. Consequently, when immigration is an element of choice, the ECtHR held that the justification will not be as weighty as in cases of distinction based, for example, on nationality.237 Overall, for discrimination on the grounds of immigration, the ECtHR distinguishes cases between immigration based on choice and forced immigration, such as the situations of refugees. Very weighty reasons do not have to be produced by States in cases where immigration reflects an element of choice. 3.2.3.2.3

Discrimination on the Ground of Residence Status

Another basis of discrimination in the case law of the ECtHR in the field of social security has been based on the residence status. In general, in cases where discrimination is based on residence status, the ECtHR is more reluctant to find a violation of Article 14 echr taken in conjunction with Article 1 P ­ rotocol 1. 233 Judgment of 25 October 2005, Niedzwiecki v.  Germany, Appl. 58453/​00, para. 33; Judgment of 25 October 2005, Okpizs v. Germany, Appl. 59140/​00, para.34. 234 Judgment of 27 September 2011, Bah v. the United Kingdom, Appl. 56328/​07. 235 Judgment of 27 September 2011, Bah v. the United Kingdom, Appl. 56328/​07, para.47. 236 Judgment of 27 September 2011, Bah v. the United Kingdom, Appl. 56328/​07, paras. 45–​47. 237 Judgment of 27 September 2011, Bah v. the United Kingdom, Appl. 56328/​07, para.47.

230 

Chapter 4

In J.W. and E. W. v. the United Kingdom,238 the applicants were British pensioners who decided to spend their retirement in Australia. They complained that their pension payments were not indexed as would have been the case had they remained in the United Kingdom. The Commission at the time found that the United Kingdom had a reasonable and objective justification for operating a policy of differential treatment in comparison to pensioners residing in the United Kingdom. The justification was that the indexation of the pension was created so as to reflect the rising cost of living in the United Kingdom, and not the rising costs in other countries.239 In 2010, in a very similar case,240 the Grand Chamber of the ECtHR took a different approach although it still did not find any violation of Article 14 echr taken in conjunction with Article 1 Protocol 1. In Carson, the applicants were British pensioners spending their retirement abroad.241 As in J.W.  and E.  W v. United Kingdom, their complaints also related to the lack of indexation of their pensions in comparison with the indexation of pensions for pensioners residing in the United Kingdom. The Grand Chamber did not discuss whether the lack of indexation was based on an objective and reasonable justification as in J.W.  and E.  W v.  United Kingdom. Instead, it found that the pensioners residing abroad were not in a similar situation as the pensioners residing in the United Kingdom.242 Furthermore, they were not in a similar situation as pensioners residing in a country with which the United Kingdom had concluded a bilateral agreement providing for the indexation of pensions.243 As there was no differential treatment, there was also no violation of Article 14 taken in conjunction with Article 1 Protocol 1.244 The same approach was followed in Efe v. Austria,245 this time with regard to the refusal to grant family benefits for children residing abroad. In Efe, the applicant was a Turkish national who moved to Austria in 1989, and had lived

238 Decision as to the admissibility of 3 October 1983, J.W. and E. W. v. the United Kingdom, Appl. 9776/​82. 239 Decision as to the admissibility of 3 October 1983, J.W. and E. W. v. the United Kingdom, Appl. 9776/​82, para.4. 240 Judgment of 16 March 2010, Carson and others v. the United Kingdom, Appl. 42184/​05. 241 In South-​Africa, Canada and Australia in this case. 242 Judgment of 16 March 2010, Carson and others v. the United Kingdom, Appl. 42184/​05, para.86. 243 Judgment of 16 March 2010, Carson and others v. the United Kingdom, Appl. 42184/​05, para.87. 244 Judgment of 16 March 2010, Carson and others v. the United Kingdom, Appl. 42184/​05, para.90. 245 Judgment of 8 January 2013, Efe v. Austria, Appl. 9134/​06.

International Standards Relevant for Social Security

231

and worked there since then. His complaint to the ECtHR concerned a refusal by the Austrian authorities to grant him family allowances and tax credits for maintenance payments concerning children residing in Turkey. The reason for the refusal was that his children were not resident in Austria.246 The ECtHR examined whether the applicant was in a similar position as a person who works in Austria and receives benefits for children residing in Austria. The ECtHR accepted the argument of the Austria Government about the fact that family allowances in Austria were intended to establish minimum standards of living for all children living in Austria.247 Considering the system of family allowances in Austria which were ‘designed to cater for the needs of the resident population’, the ECtHR refused to consider the situation of the applicant as similar to the situation of a person working in Austria and receiving benefits for children residing in Austria.248 In the Pichkur v. Ukraine case,249 the applicant was denied his pension benefits on the basis that he became permanently resident abroad. The applicant was a German national who worked for forty years in Ukraine. After a few years of retirement in Ukraine, he moved back to Germany upon which he was denied his right to a pension. Despite the similarities with the Carson and Efe cases,250 the ECtHR came to a different conclusion. The ECtHR considered that the applicant was in a similar situation to a pensioner residing in Ukraine. The ECtHR’s reasons were that the applicant, having worked for forty years in Ukraine and contributed to the pension scheme, is now deprived of his pension rights and would be entitled to the pension rights again if he moves back to Ukraine.251 For the ECtHR, the case of Pichkur was to be distinguished from Carson as Carson concerned a complaint about the lack of indexation and Pichkur was about a complete refusal to grant a pension.252 Considering the question whether the difference in treatment could be justified, the ECtHR noted that the Ukrainian authorities did not provide any justifications.253 Additionally, on its own motion, the ECtHR held that besides the fact that ilo Convention No. 102 permits the suspension of pension when the person is 2 46 Judgment of 8 January 2013, Efe v. Austria, Appl. 9134/​06, para.48. 247 Judgment of 8 January 2013, Efe v. Austria, Appl. 9134/​06, para.52. 248 Judgment of 8 January 2013, Efe v. Austria, Appl. 9134/​06, para.52. 249 Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06. 250 Like Carson, the Pichkur case concerns pension rights. However, Carson was not about the entitlement to pension rights but rather about the indexation. In terms of entitlement to the benefit, Pichkur is similar to Efe which was about entitlement to family benefits. 251 Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06, para.51. 252 Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06, paras.50–​51. 253 Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06, para.52.

232 

Chapter 4

absent from the territory of the Member State to the Convention,254 the ECtHR can decide to define higher standards. With regard to the rise of population mobility but also the higher level of international cooperation, the context of the draft of the ilo Convention 102 No. has changed. Hence, the restrictions for persons living abroad are not anymore justifiable for technical reasons of lack of cooperation for example.255 These cases of Carson, Efe and Pichkur imply that, in order to find persons living abroad in a comparable situation to persons living in the State concerned, the ECtHR pays attention to the nature of the benefit under question. If the State advances arguments that the benefit is essentially linked with the territory of the State and is designed to cater for the needs of the resident population, the ECtHR will more likely agree with the State that the situations are not comparable (Carson and Efe). If, however, the State does not advance any argument as to why the benefit in question is territorial and designed to respond to the needs of the resident population, the ECtHR will consider persons living abroad to be in a comparable situation with persons residing in the State (Pichkur).256 In Gouri v. France, rendered on 28th February 2017, the ECtHR confirmed that the essential element was whether the State could justify a residence requirement to entitlement to a benefit by referring to the nature of the benefit being territorial and designed to respond to the needs of the resident population.257 3.2.3.2.4

Discrimination on the Ground of Gender

Discrimination on the grounds of gender is not a discrimination basis that is particular to third-​country nationals in the sense that it can apply to both 2 54 Article 69 of ilo Convention 102. 255 Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06, para.53. 256 In Pichkur, the State could not advance any arguments as in fact as the Constitutional Court already declared unconstitutional the fact that the constitutional right to social security was dependent on the signing of an international treaty on pension between Ukraine and the country concerned. See, Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06, paras. 24–​25. 257 Decision as to the admissibility of 28 February 2017, Gouri v. France, Appl. 41069/​11, para.27. The decision by the ECtHR is currently only available in French. The ECtHR explains why the situation in casu was to be distinguished from Pichkur: ‘Au regard de ce dernier point, la Cour estime que la présente affaire doit être distinguée de l’affaire Pichkur c. Ukraine, dans laquelle les autorités nationales n’avaient avancé aucun élément pour justifier que le requérant, ayant travaillé et cotisé à la caisse de retraite pendant de nombreuses années, soit privé de l’intégralité de sa pension au motif qu’il ne résidait plus dans le pays. Dans la présente affaire, la Cour prend note, au contraire, des explications fournies par le Gouvernement, dont il résulte que l’asi a été établie par le législateur

International Standards Relevant for Social Security

233

nationals and non-​nationals of a State. Due to its limited particular relevance for third-​country nationals, these grounds are only briefly discussed.258 In cases of discrimination on the grounds of gender, very weighty reasons have to be put forward by the States.259 The ECtHR justifies this high standard of very weighty reasons due to the fact that equality of the sexes is today a major goal of the Member States of the Council of Europe.260 However, the States enjoy a wide margin of discretion with regard to measures of economic and social strategy.261 The scope of that margin depends on the circumstances, the subject matter and the background of the case.262 The relevant factors that the ECtHR examines are the existence or non-​existence of common ground between the laws of the Contracting States and the changing social attitudes with regard to gender discrimination. For example, in the case of Petrovic v. Austria which concerned the refusal by the Austrian authorities to grant parental leave allowance to a father on the ground that it was only available for mothers,263 the ECtHR noted that at the time when the dispute arose (in 1980), there were no common standards in that field as the majority of the Contracting States did not provide for parental leave to be paid to fathers.264 As a result, the ECtHR found that Austria could not be criticised for such a differential treatment.265

258

259

260 2 61 262 263 2 64 265

dans le but de répondre spécifiquement à certains besoins de personnes résidant sur le territoire, dont la situation ne peut être comparée à celle d’autres personnes ayant choisi de s’installer à l’étranger (mutatis mutandis, Efe c. Autriche).’ For a more extensive discussion on this ground, See L.  Slingenberg, ‘Social security in the case law of the European Court of Human Rights’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 64–​ 68, 70–​73; P. Minderhoud, ‘The ‘other’ EU security: social protection’ 8 European Journal of Social Security (2006) 376–​379. Judgment of 21 February 1997, Van Raalte v. the Netherlands, Appl. 20060/​92, para.39; Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92, para.37; Judgment of 12 April 2006, Stec and others v.  The United Kingdom, Appl. 65731/​01 and 65900/​01, para.52. Judgment of 22 March 2012, Konstantin Markin v.  Russia, Appl. 30078/​06, para.47; Judgment of 11 February 2011, Andrle v. the Czech Republic, Appl. 6268/​08, para.49. Judgment of 11 February 2011, Andrle v. the Czech Republic, Appl. 6268/​08, para.49. Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92, para. 38; Judgment of 11 February 2011, Andrle v. the Czech Republic, Appl. 6268/​08, para.49. This case was concerned with an alleged violation of Article 14 echr in combination with Article 8 echr. Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92, para.39. Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92, para.41. Also, the fact that Austria did introduced such a parental leave allowance to fathers in 1990 was considered by the ECtHR.

234 

Chapter 4

By contrast, in Konstantin Markin, a case concerned with the refusal to grant parental leave to fathers,266 the Grand Chamber held that references to the traditional distribution of gender roles in society cannot justify the exclusion of men from entitlement to parental leave.267 Since Konstantin Markin, it is very difficult to envisage a case where exclusion from parental leave on the basis of gender would be accepted by the ECtHR.268 The same cannot be said concerning pension rights however. For example, in Andrle, a case dealing with different pensionable ages for men and women caring for children, the ECtHR found that its reasoning in Konstantin Markin could not be applied to pension schemes.269 The ECtHR held that pension schemes, unlike parental leave, relate to long-​term benefits and must be gradually adjusted in order to guarantee the stability of the pension system and legal certainty.270 Hence, when it comes to pension rights, the ECtHR adopts a much more cautious approach and does not find easily a violation of Article 14 echr in combination with Article 1 Protocol 1. 3.2.3.3 Protocol No. 12 on the General Prohibition of Non-​Discrimination In case a benefit does not fall within the ambit of Article 1 of Protocol 1 or under Article 8 echr, the discriminatory treatment can be contested through the use of Protocol No 12. Article 1 of Protocol 12 contains a general prohibition of non-​discrimination. The meaning of term ‘discrimination’ under Article 1 of Protocol 12 must be considered as identical to the meaning of ‘discrimination’ under Article 14

266 Like in Petrovic, the provisions of the echr invoked in Konstantin Markin were Article 14 echr in combination with Article 8 echr. 267 Judgment of 22 March 2012, Konstantin Markin v. Russia, Appl. 30078/​06, para.143. 268 The same reasoning is also used with regard to other benefits such as disability benefits where the ECtHR also demands very weighty reasons to justify discriminatory treatment on the basis of sex and pays attention to the particular context of the benefits and the contestation of the discriminatory treatment in the domestic systems. See, Judgment of 2 February 2016, Di Trizio v. Switzerland, Appl. 7186/​09. 269 Judgment of 11 February 2011, Andrle v. the Czech Republic, Appl. 6268/​08, para.59. 270 Judgment of 11 February 2011, Andrle v. the Czech Republic, Appl. 6268/​08, paras. 51 and 59. In Stec, another case concerned with difference in pension age, the ECtHR already indicated that ‘In the light of the original justification for the measures as correcting financial inequality between the sexes, the slowly evolving nature of the change in women’s working lives, and in the absence of a common standard amongst the Contracting States, the Court finds that the United Kingdom cannot be criticized for not having started earlier on the road towards a single pensionable age’. See, Judgment of 12 April 2006, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01, para.64.

International Standards Relevant for Social Security

235

echr.271 In that regard, the ECtHR follows the same approach for cases of discrimination under Article 1 Protocol 12 as for cases of discrimination under Article 14 echr.272 One main difference with Article 14 echr is that Article 1 of Protocol 12 does not need to be associated with another article of the echr and therefore can be used on its own. Despite this advantage, there are very few cases on Article 1 of Protocol 12.273 It can be explained by the fact that Protocol 12 has been ratified by only 20 States.274 This low ratification diminishes the chance of having a high number of cases that can be launched against States on the basis of Protocol 12. In the field of social security, the only notable case under Article 1 of Protocol 12 is the Ramaer and Van Willengen case where the ECtHR refused to consider healthcare insurance contracts as ‘possessions’ under Article 1 of Protocol 1 and instead examined the alleged differential treatment under Article 1 of Protocol 12. In Ramaer and Willengen, the alleged differential treatment consisted of the fact that Dutch pensioners living abroad were treated differently in their entitlement to healthcare than Dutch pensioners residing in the Netherlands while paying the same contributions. The alleged differential treatment was a result of the entitlement to healthcare being determined by the local basic health care regime which, depending on where they resided, was of a lesser coverage for Dutch pensioners residing abroad thereby forcing them to take up complementary insurance coverage.275 The ECtHR very briefly found that the Dutch pensioners living abroad were not in a similar situation to those living in the Netherlands and therefore no differential treatment could be found.276 271 Point 18 in Explanatory Report to the Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4.11.2000. 272 Judgment of 22 December 2009, Sejdić and Finci v. Bosnia and Herzegovina, Appl. 27996/​ 06 and 34836/​06, para.55; Decision as to the admissibility of 23 October 2012, Ramaer and Van Willigen v. the Netherlands, Appl. 34880/​12, paras. 88–​91; Judgment of 15 July 2014, Zornić v. Bosnia and Herzegovina, Appl. 3681/​06, para.27; Judgment of 9 June 2016, Pilav v. Bosnia and Herzegovina, Appl. 41939/​07, para.40. 273 L. Slingenberg, ‘Social security in the case law of the European Court of Human Rights’, in F.  Pennings & G.  Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015) 62. 274 For this research, it is interesting that from the Members of the Council of Europe selected under this research (Belgium, Germany, the Netherlands and Turkey), only the Netherlands ratified it in 2005. In addition, 9 other Member States have ratified it: Croatia (2005), Cyprus (2005), Finland (2005), Luxembourg (2006), Malta (2016), Portugal (2017), Romania (2006), Slovenia (2010), Spain (2008). 275 Decision as to the admissibility of 23 October 2012, Ramaer and Van Willigen v.  the Netherlands, Appl. 34880/​12, paras.92–​94. 276 Decision as to the admissibility of 23 October 2012, Ramaer and Van Willigen v.  the Netherlands, Appl. 34880/​12, para.101.

236 

Chapter 4

The ECtHR used Carson to recall that an important element was whether the pension system in Carson was essentially national, in the sense of territorial, and designed to meet the needs of United Kingdom residents.277 Similarly, the ECtHR found that the Dutch healthcare legislation was intended to provide an essentially territorial system. Furthermore, the Dutch pensioners living abroad made the choice of living abroad and were treated equally with the nationals of their State of residence pursuant to Regulation 1408/​71.278 In that sense, any complementary insurance coverage was an optional choice that the Dutch pensioners made and could not amount to a differential treatment imposed by the Netherlands. Overall, the relevance of Article 1 Protocol 12 is limited to cases arising in States who have ratified the Protocol. The test to conclude to a discriminatory treatment is the same as under Article 14 echr. Hence, the discussion on the grounds of discrimination under Article 14 echr in combination with Article 1 Protocol 1 or with Article 8 echr would be also relevant for the grounds of discrimination under Article 1 Protocol 12. 3.2.3.4

The Relevance of the echr and the ECtHR Case Law for the Field of Social Security Coordination The echr has a wide scope of application and is likely to cover every social security benefit. Under Article 1 Protocol 1, the ECtHR has adopted a very broad definition of ‘possession’. It is sufficient that the person proves that he/​she has an assertable right under national law for the benefit to fall within the scope of Article 1 Protocol 1.279 Additionally, those benefits related to the protection of family life (family benefits) or private life (disability benefits) can fall under the scope of Article 8 echr.280 Finally, even when the benefit does not fall under Article 1 Protocol 1 or Article 8 echr, Article 1 Protocol 12 prohibiting discrimination still applies provided that the State has ratified the Protocol.281

277 Decision as to the admissibility of 23 October 2012, Ramaer and Van Willigen v.  the Netherlands, Appl. 34880/​12, para.98. 278 Decision as to the admissibility of 23 October 2012, Ramaer and Van Willigen v.  the Netherlands, Appl. 34880/​12, para.99. 279 Decision as to the admissibility of 6 July 2005, Stec and others v. the United Kingdom, Appl. 65731/​01 and 65900/​01. 280 For family benefits, see Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92; For disability benefits, see Judgment of 2 Febuary 2016, Di Trizio v.  Switzerland, Appl. 7186/​09. 281 Decision as to the admissibility of 23 October 2012, Ramaer and Van Willengen v.  the Netherlands, Appl. 34880/​12.

International Standards Relevant for Social Security

237

This broad scope of application implies that claimants often have their case heard before the ECtHR. Admissibility of the claim does not necessarily mean that the claim is successful in proving a violation of the echr or its Protocols. In the field of social security involving social and economic choices, the ECtHR accords a wide margin of appreciation to the States for justifying interference with the rights provided by the echr or its Protocols. In some cases, such as cases of discrimination on the grounds of nationality or gender, the ECtHR requires States to produce very weighty reasons to justify discriminatory treatment. In the other cases, such as a deprivation or a reduction of pension rights or discrimination on the grounds of residence or immigration status, the ECtHR conducts a case-​ by-​case analysis where the States are often presenting sufficient arguments to justify their interference or discriminatory treatment. Finally, the ECtHR had the occasion to say a word on the conclusion of bilateral agreements on social security coordination. Indeed, the lack of a bilateral agreement is often presented by States as an argument for refusing to grant a benefit to a non-​national.282 However, the ECtHR has consistently held that lack of bilateral agreements does not absolve States which are parties to the echr from respecting their obligations under the echr.283 While the ECtHR recognises the practical importance of the bilateral agreements on social security coordination, the lack of it is not a sufficient justification. Hence, for the development of a common EU approach on social security coordination with third countries, the standards developed under the case law of the ECtHR must be kept in mind as the Member States are all parties to the echr and are all bound by the case law of the ECtHR. 4

Conclusion

Throughout this Chapter, for each international instrument discussed, a brief analysis of the relevance of the international standards has been conducted. It must be concluded that international standards adopted by international organisations have varying relevance for the field of social security coordination and for the development of a common EU approach with third countries.

282 Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892, paras.14,20, 22; Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para. 90. 283 Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892, para.49; Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00, para. 90.

238 

Chapter 4

Despite declaring a right to social security, the UN instruments do not have an added value for the development of a common EU approach to social security coordination with third countries. The ilo and Council of Europe’s instruments have a more important value in that regard. The ilo conventions and the European Code of Social Security can be considered as inspirational guidelines for the future development of a common EU approach on social security coordination. The European Convention on Social and Medical Assistance could have a more important impact for the Member States. Indeed, as was seen from the facts of the Alimanovic and Garcia-​Nieto cases, the European Convention on Social and Medical Assistance could grant more rights to non-​nationals of Member States than what EU law demands. However, the Member States have realised it and those who were parties to the European Convention on Social and Medical Assistance have made reservations to limit the principle of equal treatment thereby excluding it from applying to some of their social benefits.284 This attitude of the Member States indicates that it would be very difficult for them to agree to grant equal treatment to non-​nationals with regard to social assistance benefits in a future common EU approach. Finally, the most relevant international instruments are the European Social Charter and the echr. Concerning the European Social Charter, the European Committee of Social Rights has consistently found that Member States who are parties to the European Social Charter always need to respect the European Social Charter including when they implement EU law. Despite the many references to the respect for the European Social Charter in EU law,285 the Member States cannot presume that EU law is fully in compliance with the European Social Charter.286 With regard to the echr, the ECtHR has held that the lack of bilateral agreements concluded by States is not an excuse to escape their obligations under the echr.287 One of their most relevant obligations under the echr for the purpose of this research is the obligation for States to grant pension rights to persons residing abroad who have contributed all their life to the State social security system and who are considered in a similar situation 2 84 Reservations made by Germany and Belgium. 285 For example, in taking actions on social policies, the EU must have due regard to the European Social Charter (Article 151 tfeu). Also, Article 34 of the EU Charter of Fundamental Rights was drafted in accordance with Article 12 of the European Social Charter. 286 Confédération Générale du Travail (CGT) v.  France, Complaint No.55/​2009, European Committee of Social Rights, June 23 2010, paras. 32 and 33. 287 Judgment of 30 September 2003, Koua Poirrez v. France, Appl.40892/​98; Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00.

International Standards Relevant for Social Security

239

as persons residing in the State.288 This obligation implies that States need to provide equal treatment in regard to the export of pension rights between persons residing abroad and persons residing in the State. The only way States can escape from that obligation is by arguing that the benefit they do not allow to export is specifically designed to provide for the needs of the resident ­population.289 2 88 Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06. 289 Judgment of 8 January 2013, Efe v. Austria, Appl. 9134/​06; Decision as to the admissibility of 28 February 2017, Gouri v. France, Appl. 41069/​11.

­c hapter 5

EU Agreements as a First ‘Solution’ to Develop a Common EU Approach to Social Security Coordination with Third Countries As highlighted in the introductory Chapter and as developed in Chapters 2 and 3 of this research, the current approach towards social security coordination with third countries is fragmented. It consists of a patchwork of instruments adopted by the Member States and by the EU respectively. Additionally, Chapter 4 showed that international organisations such as the ilo, the UN and the Council of Europe have adopted standards impacting the EU and the Member States’ practices of social security coordination with third countries. As a way to reduce the disparities between the EU and the national approaches, the European Commission proposed in a 2012-​Communication to develop a common approach to social security coordination with third countries.1 The European Commission put two options on the table:  (1) using Association Agreements as a way to further develop a common EU approach, and (2)  concluding EU agreements on social security coordination with third countries. While the first option already exists with regard to some third countries,2 the second option of concluding EU agreements on social security coordination would result in the adoption of a new type of EU instrument. Based on the analysis of the EU and national instruments conducted in Chapters  2 and 3, this Chapter explores the possibilities put forward by the European Commission in 2012. This Chapter questions the legal feasibility as well as the practical relevance of the European Commission’s ideas to achieve the aim of developing a common approach.

1 European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final. 2 For example, there is the EU-​Turkey Ankara Agreement. The conclusion of Association Agreements that include social security coordination provisions is further discussed in this Chapter, pp.240–​245. The current EU agreements that include social security coordination provisions were discussed in details in Chapter 2, pp.61–​101.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_006

EU Agreements as a First ‘Solution’ to Develop a Common EU

1

241

EU Agreements: the ‘Solution’ to Achieve a Common EU Approach on Social Security Coordination?

In both options proposed by the European Commission, the EU is in command in developing a common EU approach. Indeed, in both options, the EU is the one concluding agreements with third countries. However, as it was pointed out in Chapter 3, the majority of the social security coordination with third countries is currently dealt by the Member States via the conclusion of bilateral agreements.3 Before discussing the two options proposed by the European Commission, some considerations concerning the added value of a common EU approach and the importance of identifying an appropriate legal basis are discussed. 1.1 The Added Value of a Common EU Approach First of all, the Treaties require the EU to take into account values such as the social protection of workers when acting on the international scene. Article 21 teu states that the Union’s action on the international scene should be guided by principles such as the universality and indivisibility of human rights and fundamental freedoms, or the principles of equality and solidarity. Furthermore, Article 21(2) teu lists the objectives the EU should pursue in external actions: namely (d) foster the sustainable economic, social and environmental development of developing countries, with the primary aim of eradicating poverty; and (f) help develop international measures to preserve and improve the quality of the environment and the sustainable management of global natural resources, in order to ensure sustainable development. Concerning Article 21(2)(f) teu, the Court of Justice found that the goal of guaranteeing social protection of workers is to be associated with the objective of sustainable development.4 In addition to the objectives already cited, Article 3(5) teu requires the EU to contribute to ‘free and fair trade’ in its relations with the wider world. Finally, Article 9 tfeu provides that the EU should take into account requirements linked to the guarantee of adequate social protection when defining and implementing its policies and activities. From the EU’s perspective, developing and promoting a common EU approach to social security coordination with third countries would permit the 3 There are over 350 bilateral agreements between the Member States and third countries. H. Verschueren, ‘Employment and Social Security Rights of Third-​Country Labour Migrants under EU Law: An Incomplete Patchwork of Legal Protection’ 18 European Journal of Migration and Law (2016) 404. 4 Opinion 2/​15 EU-​Singapore Free Trade Agreement, ECLI:EU:C:2017:376, paras.146–​149.

242 

Chapter 5

EU to reinforce its position on the international scene as a relevant actor promoting social protection. This idea of reinforcing the EU’s position as a relevant actor promoting social protection at international level is highlighted by the European Commission in its communication.5 Since 2004, the EU and the ilo have concluded a Strategic Partnership6 in the context of which the European Commission aims at cooperating more in the field of social protection.7 The EU has also been active in building a dialogue with the wto on the inclusion of ‘social clauses’ in trade agreements and in the wto regime.8 However, since 2001, the EU has focused on working with the ilo as the only relevant interlocutor on international issues related to social protection.9 Hence, developing an EU policy on social security coordination with third countries could send a strong political signal to the international sphere that there is EU commitment to protect the social security rights of migrant workers.10 In addition to the importance for the EU to position itself as a global actor in social protection, there is the often-​neglected argument that social security coordination would also be beneficial for EU citizens working abroad. As the findings of Chapter  2 show, so far, EU citizens who are working or residing in a third country have not been offered protection by the EU with regard to their social security rights. The EU has adopted a series of measures having an impact on the social security rights of third-​country workers in the EU. For example, Article 14 of the Blue Card Directive provides for equal treatment in relation to the social security situation of third-​country nationals in the Member 5 6

7 8

9 10

European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 9. European Commission and International Labour Organisation, Memorandum of Understanding concerning the establishment of a strategic partnership between the International Labour Organisation and the Commission of the European Communities in the field of Development, 15.07.2004 Brussels and 16.07.2004 Geneva. European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 9. The result of the dialogue on social clauses was the inclusion of a paragraph on labour standards in the Declaration of the Singapore Ministerial Conference in 1996. Singapore wto Ministerial 1996: Ministerial Declaration, WT/​MIN(96)/​DEC, point 4. For more information on this, V. A. Leary, ‘The WTO and the Social Clause: Post-​Singapore’ European Journal of International Law (1997) 118–​122. J. Orbie, H. Vos and L. Taverniers call this focus on the ilo as an ‘ILO-​isation of the EU’. J. Orbie, H. Vos & L. Taverniers, ‘EU trade policy and a social clause: a question of competences?’ 17 Politique européenne (2005) 159–​187. For a more detailed overview of the relationship between the EU with the ilo and the wto in relation to the promotion of a social dimension in international instruments, See J. Orbie & L. Tortell (Eds.), The European Union and the Social Dimension of Globalization. How the EU influences the world (Routledge 2009) 1–​242.

EU Agreements as a First ‘Solution’ to Develop a Common EU

243

States. However, such a provision is an EU unilateral measure. It was adopted by the EU, with the purpose to cover situations of third-​country nationals working in the EU. Similarly, within the context of the EU-​Turkey Association Agreement, Decision 3/​80 only concerns the social security situation of Turkish workers in the Member States.11 Decision 3/​80 lacks reciprocity. This means that EU citizens working in Turkey are not offered protection from Decision 3/​ 80. Overall, it can be said that the EU is failing to acknowledge the social security situation of EU citizens working and residing abroad. Having a common EU approach on social security coordination with third countries could permit reciprocal rules with third countries and therefore cover the situation of EU citizens residing and working in those third countries. From the Member States’ point of views, having a common EU approach to social security coordination with third countries could be beneficial too. Currently, each Member State negotiates and concludes agreements separately with third countries. Sometimes, if not often, third countries are diplomatically stronger compared to individual Member States. By acting together following a common EU approach, Member States could appear more united to third countries and could have a stronger position in their negotiations. On top of this diplomatic consideration, having a common EU approach would mean having a common text ready for negotiations. Such an option is time efficient, especially for Member States who do not already have a model agreement to negotiate with third countries. It could allow the Member States’ delegations to save time in drafting the mandate for negotiations. Finally, from a migrant’s perspective, it must first be said that it is difficult to measure the impact of social security coordination on migration decisions. On the one hand, this link between social security coordination and migration under-​researched. And on the other hand, it is difficult to isolate the component social security coordination from all the components such as visa requirements, family reunification, diploma recognition that are part of the m ­ igratory process.12 However, there is a common assumption among the scientific community that the lack of social security coordination impacts negatively the rights of migrant workers.13 From the industry’s point of view, D. Mukherjee

11 12 13

Decision 3/​80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C110/​60. R. Holzmann & M. Werding, ‘Portability of Social Benefits: Research on a Critical Topic in Globalization’ (CESifo Economic Studies 2015) 335. R. Holzmann & M. Werding, ‘Portability of Social Benefits: Research on a Critical Topic in Globalization’ (CESifo Economic Studies 2015) 336.

244 

Chapter 5

and R.  Chanda conducted research on the investment and labour mobility linkages between India and the EU. According to their research, the industry sector in the EU and in India considers that it would be beneficial if the bilateral agreements were following a common approach.14 Ideally for the industry sector, an Indian IT company would rely on a single rule concerning the exemption from paying social security contributions for its posted workers in the Netherlands, Hungary and Sweden.15 1.2 The Existence and the Nature of EU Competence Next to the considerations concerning the added value of a common EU approach, the question of the existence of an appropriate legal basis and the nature of EU competence must be addressed when considering any type of EU involvement in external relations;16 here it would be more precisely in the field of social security coordination with third countries. The EU legal order relies on the principle of conferral.17 Article 5(2) teu enshrines the principle of conferral by stating that ‘the Union shall act only within the limits of the competences conferred upon it by the Member States in the Treaties to attain the objectives set out therein’. Hence, the principle of conferral demands an appropriate legal basis for the EU to act. According to settled case law, the choice for a legal basis must rest on objective factors amenable to judicial review, which include the aim and content of the measure to be adopted.18 If several legal bases would serve the same aim and content of a measure and the Treaties contain a more specific provision that is capable of constituting a legal basis, the measure must be founded on that more specific provision.19 Furthermore, if examination of the measure reveals several aims or components of which one is predominant and the other one merely incidental, the measure should be based on a single legal basis reflecting the

14 15

16 17 18 19

D. Mukherjee & R. Chanda, ‘Investment and Migration linkages between India and the EU’, CARIM-​India Research Report (16, 2012) 22. The agreements between India and Netherlands, and India and Hungary provide for up-​ to 5 years exemption for posted workers, whereas the India-​Sweden agreement provides for up-​to 2 years exemption (to be extended to up-​to 2 additional years if the competent authorities of India and Sweden agree). Opinion 2/​00, Cartagena Protocol, ECLI:EU:C:2001:664, para.5. Article 5(1) TEU provides that ‘the limits of Union competences are governed by the principle of conferral’. Case C-​300/​89 Commission v. Council (Titanium Dioxide), ECLI:EU:C:1991:244, para.10; Case C-​338/​01 Commission v. Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253, para.54. Case C-​155/​07 European Parliament v. Council, ECLI:EU:C:2008:605, para.34.

EU Agreements as a First ‘Solution’ to Develop a Common EU

245

predominant aim.20 If, however, several aims or components are inseparably linked without one being incidental to the other, the measure should be based on the legal bases reflecting those aims provided that the procedures are compatible.21 According to Article 47 teu, the EU has international personality. This implies that the EU has the capacity to establish contractual relations with third countries. The EU mandate to conclude agreements with third countries is found in Article 216 tfeu. Article 216 tfeu contains the codification of the doctrine of implied powers22 developed by the Court of Justice in the erta case,23 later complemented in the Kramer case24 and in Opinion 1/​76.25 According to Article 216 tfeu, the EU will have the competence to conclude international agreements with third countries in four instances: (1) where the Treaties so provide; (2)  where the conclusion of an agreement is necessary in order to achieve one of the Union’ policies or objectives referred to in the Treaties; (3) where the conclusion of an agreement is provided for in a legally binding Union act; (4) or where the conclusion of an agreement is likely to affect common rules or alter their scope. Article 216 tfeu is not a general legal basis allowing the EU to conclude international agreements. Rather, Article 216 tfeu infers an external competence only when combined with a more specific legal basis. Furthermore, there are more specific provisions in the tfeu which allow the EU to conclude international agreements with third countries, such as 20 21 22 23 24 25

Case C-​165/​87 Commission v.  Council, ECLI:EU:C:1988:458, para.10; Case C-​300/​89 Commission v. Council (Titanium Dioxide), ECLI:EU:C:1991:244, para. 17; Case C-​338/​01 Commission v. Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253, para.55. Case C-​300/​89 Commission v. Council (Titanium Dioxide), ECLI:EU:C:1991:244, paras. 17–​ 21; Case C-​338/​01 Commission v. Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253, paras.56–​57. Together with Article 3(2) tfeu. Case C-​22/​70 Commission v. Council, ECLI:EU:C:1971:32. Joined cases C-​3/​76, 4/​76 & 6/​76 Cornelis Kramer and Others, ECLI:EU:C:1976:114. Opinion 1/​76, Draft Agreement establishing a European laying-​up fund for inland waterway vessels, ECLI:EU:C:1977:63. For a discussion of the codification of the erta doctrine, see M.  Cremona, ‘External Relations and External Competence of the European Union: The Emergence of an Integrated Policy’, in P. Craig & B. de Burca, The Evolution of EU Law (Second Edition, Oxford University Press 2011) 225. For a critical analysis of the changes brought by the Lisbon Treaty in the field of external relations, See M. Cremona, ‘Defining competence in EU external relations: lessons from the Treaty reform process’, in A. Dashwood & M. Maresceau (Eds.), Law and Practice of EU External Relations: Salient Features of a Changing Landascape (Cambridge University Press 2008)  34–​ 69; M. Cremona, ‘External Relations and External Competence of the European Union: The Emergence of an Integrated Policy’, in P. Craig & B. de Burca, The Evolution of EU Law (Second Edition, Oxford University Press 2011) 226.

246 

Chapter 5

Article 217 tfeu for Association Agreements, Article 209 tfeu for Partnership and Cooperation Agreements, Article 212 tfeu for Strategic Partnerships; and Article 207 for Free Trade Agreements. In the following pages of this Chapter, a systematic examination of the appropriate legal basis for the adoption of an EU agreement with a third country that includes social security coordination provisions (option 1) or for the adoption of an EU agreement on social security coordination with third countries (option 2) is conducted. Next to the consideration concerning the existence of an EU competence, the nature of the competence is another extremely important element in external relations. The nature of the competence is important in external relations as it determines the extent of the obligations of the EU and the Member States. When the EU has exclusive competence, it means that the EU negotiates and concludes agreements with third countries alone (‘EU only agreements’). When the competence is shared between the EU and the Member States, a mixed agreement would need to be concluded by the EU and its Member States. Hence, each Member State must give their consent to a mixed agreement. Article 3(1) tfeu lists areas in which the EU has an a priori exclusive competence. Furthermore, Article 3(2) tfeu provides that the EU will have exclusive competence when the international agreement’s conclusion is provided for in a legislative act of the Union or is necessary to enable the Union to exercise its internal competence, or in so far as its conclusion may affect common rules or alter their scope.26 Social security coordination is not one of the areas in which the EU has an a priori exclusive competence. Additionally, it cannot be said that social security coordination with third countries would be an implied exclusive competence under Article 3(2) tfeu. Indeed, there is no legally binding Union act providing for the EU to conclude agreements that would include social security coordination provisions or EU agreements exclusively on social security coordination with third countries. Also, such EU agreements would not affect common Union rules nor alter their scope. The current EU legislation on social security coordination (Regulation 883/​2004, Regulation 987/​2009 and Regulation 1231/​2010) apply only to EU citizens and third-​country nationals who move between the Member States and not to those who move to third countries, or move to the EU from a third country.27 Potential future EU social security coordination with third countries would .

26 27

This corresponds to the third and fourth instances when the EU can conclude an agreement with a third country under Article 216 tfeu. The current EU legislation on social security coordination for EU citizens and third-​ country nationals moving within the EU have been discussed in details in Chapter  2, pp.28–​58.

EU Agreements as a First ‘Solution’ to Develop a Common EU

247

therefore fall outside the scope of the current EU rules on social security coordination. In conclusion, the EU would not have an exclusive competence for concluding EU agreements with third countries that include social security provisions or EU agreements exclusively on social security coordination with third countries. Finally, the existence and choice of a specific legal basis will have consequences for the voting procedure in the Council and the negotiation procedure of the agreement. Article 218 tfeu sets out the procedure for concluding EU international agreements.28 In the context of an EU agreement with a third country that would include social security coordination (option 1) or a specific EU agreement on social security coordination with a third country (option 2), the procedure would begin with an authorisation by the Council to start the negotiations with the third country.29 The Council’s voting would be by qualified majority voting unless the agreement was to be an Association Agreement for which unanimity would be required.30 As the EU agreements suggested in option 1 and option 2 would not be principally about cfsp, the European Commission would negotiate the agreement on behalf of the EU.31 During the negotiations, the Council could address directives to the Commission and designate a special committee of the Council with whom the Commission would consult.32 Considering that most of the social security coordination with third countries takes place at national level,33 it might be desirable to have such a special committee of the Council in case an EU agreement included social security coordination provisions and even more so if the EU agreement was exclusively about social security coordination with a third country. However, it must be said that the special committee of the Council cannot provide for detailed directives on the position of the EU in the negotiation 28

29 30 31 32 33

While it is true that Article 207 tfeu contains some procedural elements, it nonetheless refers to Article 218 tfeu either to conform with it or to derogate from it. Article 207 (5): ‘The negotiation and conclusion of international agreements in the field of transport shall be subject to Title vi of Part Three and to Article 218.’ For a more detailed discussion on the relationship between Article 218 tfeu and material legal bases, see C. Rapoport, ‘La procédure de conclusion des accords externes de l’Union Européenne: Quelle unité après Lisbonne?’, in I. Govaere, E. Lannon, P. van Elsuwege & S.Adam (Eds.), The European Union in the World. Essayes in Honour of Marc Maresceau (Martinus Nijhoff Publishers 2014) 151. Article 218(2) tfeu. Article 218(8) second sentence tfeu. Article 218(3) tfeu. Article 218(4) tfeu. The practices of social security coordination between third countries and the Member States have been explained in Chapter 3, pp.131–​180.

248 

Chapter 5

process.34 The special committee of the Council has more of a consultative role. In that regard, the Commission should make sure that the special committee receives all the information necessary to monitor the negotiations.35 Once the negotiations were successfully achieved, the Council would adopt the decision concluding the agreement with the consent of the European Parliament.36 Also, it should be said that the European Parliament would have to be involved throughout the procedure in the sense that it is to be informed during all stages of the negotiation and conclusion of an agreement.37 Under Article 218(11) tfeu, the Court of Justice has jurisdiction to rule, ex ante, on the compatibility of international agreements with other provisions of the ­Treaties. Lastly, a short explanation about the procedure for the implementation of an EU agreement with third countries must be given. The implementation of an EU agreement with a third country would be needed for some types of agreements such as Association Agreements or Partnership and Cooperation Agreements. For example, as explained in Chapter 2, Decision 3/​80 on social security coordination rules for Turkish nationals in the EU was adopted by the Association Council of the EU-​Turkey Association Agreement. That Decision 3/​80 implements Article 39 of the Additional Protocol of the EU-​Turkey Association Agreement which provides that the Association Council should adopt measures on social security coordination. Currently, Decision 3/​80 needs to be updated by the Association Council so as to include references to the newest social security legislation. In that context, the Council takes a decision on the position to be adopted on behalf of the EU in the EU-​Turkey Association Council.38 That Council Decision on the position to be taken on behalf of the EU is adopted in accordance with the procedure set out in Article 218(9) tfeu whereby the Council alone adopts the decision, acting on the basis of a Commission’s proposal. The Council Decision should not concern acts intended to

34 35 36 37 38

Case C-​425/​13 Commission v. Council, ECLI:EU:C:2015:483, paras.85–​93. Case C-​425/​13 Commission v. Council, ECLI:EU:C:2015:483, paras.66–​67. Article 218(6) tfeu. Article 218(11) tfeu. Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​19–​25.

EU Agreements as a First ‘Solution’ to Develop a Common EU

249

supplement or amend the institutional framework.39 Article 218(9) tfeu does not lay down the procedure according to which a Council Decision on the position to be taken on behalf of the EU should be adopted. According to the case law of the Court, the procedure will be determined by the substantive legal basis used next to Article 218(9) tfeu.40 An EU Agreement Per Third Country Instead of an EU Agreement for All Third Countries Despite the fact that this research is about a common EU approach and reflects extensively on the EU and Member States’ practices, the positions of third countries must not be forgotten. In both options explored in this Chapter, third countries are involved in the conclusion of an agreement with the EU. The third countries selected for the purpose of this research are Turkey, India and usa.41 Those third countries are very diverse in terms of current relationship they have with the EU, the migration patterns between them and the EU as well as their social security systems. First, India is one of the first third country that developed diplomatic ties with the EU in the 1960’s.42 Since 2004, India and the EU consider each other as strategic partners.43 Discussions and negotiations on various instruments such as a Free Trade Agreement or an Open Sky Agreement have been going on since 2005 between the two partners.44 These discussions show a clear interest for more cooperation. Additionally, the potential for labour migration and investments between the EU and India will only grow in the future.45 From a 1.3

39 Article 218(9) last sentence tfeu. 40 Case C-​244/​17 Commission v Council, ECLI:C:2018:662, paras.30 and 35. 41 The scientific reasons for selecting those countries have been explained in the Introductory Chapter, pp.11–​15. 42 K. Eisele & A. Wiesbrock, ‘Reaching Out-​The External Dimension of the EU’s Migration Policy. A Comparative Study on India and Australia’. CARIM-​India Research Report (12, 2013) 8; For a detailed description of the historical ties and migration flows between the EU (and some Member States) and India from the colonial period until today, See B. K. Potnuru & V.Sam, ‘India-​EU Engagement and International Migration:  Challenges and Policy Imperatives’ CARIM-​India Research Report (26, 2012). 43 European Commission, ‘An EU-​India Strategic Partnership’ (Communication) COM (2004) 0430 final. 44 Those elements were already mentioned in the India-​EU Joint Action Plan in 2005. Council of the EU, Press Release IP/​11984/​05, ‘The India-​EU Strategic Partnership Joint Action Plan’. 45 United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017) 1.

250 

Chapter 5

social security coordination perspective, India is a third country with whom the EU does not have any agreement. India has however concluded bilateral agreements with 12 Member States.46 Consequently, new bilateral agreements with India could be concluded by other Member States and in that regard a common EU approach could be interesting.47 Furthermore, the current bilateral agreements could still be renegotiated in the context of which a common EU approach could also be useful. Second, the usa and the EU have a long-​standing relationship which is mainly centered around trade but also security interests.48 The relationship was formalised in 1990 with the conclusion of the Transatlantic Partnership but there had already been dialogues between the two entities since the creation of the European Coal and Steel Community.49 Currently, the EU and the usa are negotiating the Transatlantic Trade Investment Partnership (‘ttip’) which does not include any reference to social security coordination. The eu-​u sa relationship has never been concerned about labour migration nor social security coordination. The usa has concluded bilateral agreements on social security coordination with 19 Member States since the 1980’s. As the comparative legal analysis of Chapter 3 showed, the bilateral agreements are in fact quite similar with only minor differences. The consistency among the bilateral agreements seems to come from the usa side and not from the Member States.50 Despite their consistency, the bilateral agreements are old-​generation instruments and would benefit from a revision. In that context, pursuing a common EU approach could constitute an advantage for the negotiating position of Member States acting together as opposed to acting alone.51

Available https://​esa.un.org/​unpd/​wpp/​Publications/​Files/​WPP2017_​KeyFindings.pdf, last accessed on 31 May 2019. 46 India has agreements on social security with 12 Member States: Austria (2015), Belgium (2009), Czech Republic (2014), Denmark (2011), Finland (2014), France (2011), Germany (2017), Hungary (2013), Luxembourg (2011), Netherlands (2011), Portugal (2017), Sweden (2012). For a detailed analysis of those bilateral agreements, see P. Melin, ‘A comparative legal analysis of the Member States’ social security agreements with India: towards a common EU approach?’ European Journal of Social Security (2018). 47 The same argument will hold for Chapter 6 which proposes an EU model agreement. 48 C. Budd, ‘US-​EU Relation After Lisbon: Reviving Transatlantic Cooperation’ (lse Research Online 2010) 34. 49 Declaration on U.S.-​ EC Relations, 1 December 1990, available at https://​ useu.usmission.gov/​declaration-​u-​s-​ec-​relations/​, last accessed on 31 May 2019. 50 Chapter 3, pp.131–​180. 51 The same argument will hold for Chapter 6 which proposes an EU model agreement.

EU Agreements as a First ‘Solution’ to Develop a Common EU

251

Third and finally, Turkey has had an Association Agreement with the EU since 1963.52 In the context of the Association Agreement, Decision 3/​80 on social security coordination has been adopted by the Association Council.53 The provisions under Decision 3/​80 do not have direct effect except for the equal treatment provision54 and the export of benefits.55 In order for individuals to be able to rely upon the provisions of Decision3/​80, they would need to be implemented.56 Additionally, the current references to the social security legislation found in Decision 3/​80 need to be updated.57 However, the update to Decision 3/​80 has not yet been adopted by the Association Council.58 As a result, despite the fact that there is already an EU agreement with Turkey, the current situation is not satisfactory and a common EU approach to social security coordination could be beneficial. This short overview of the main differences between the third countries selected for the purpose of this research highlights the reasons why it is important to differentiate the social security coordination which the EU wants to pursue with those third countries. Turkey, usa and India have different relationship with the EU. They are faced with different realities with regard to labour migration and social security coordination. As a result, the content of any future social security coordination agreement with those third countries, be it as an EU agreement that would include social security coordination provisions (option 1)  or an EU agreement exclusively on social security coordination (­option 2), would need to vary to fit the different realities, needs and relationships with third countries.

52 53 54 55 56 57

58

Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 [1977] OJ L 361/​1. Decision 3/​80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C110/​60. Case C-​262/​96 Sürül, ECLI:EU:C:1999:228. Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346. It should be noted that Decision 3/​80 is partly implemented in the sense that for movement of Turkish nationals within the EU, they can rely on Regulation 1231/​2010. Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​19–​25. The reasons behind this lack of adoption are later discussed in this Chapter, on pp.240–​242.

252  2

Chapter 5

Option 1: EU Agreements that Include Provisions on Social Security Coordination

One of the options proposed by the European Commission in its 2012 Communication on a common EU approach to social security coordination with third countries was the inclusion of social security provisions in Association Agreements. This option should be seen in the continuation of the already existing practice of Association Agreements that include social security coordination provisions: the EU-​Turkey Association Agreement (Decision 3/​80); the Euro-​ Mediterranean Association Agreements with Algeria,59 Egypt,60 Jordan,61 Israel,62 Lebanon,63 Morocco64 and Tunisia65; and the Stabilisation Association Agreements with the Former Yugoslav Republic of Macedonia,66 Albania,67 Montenegro,68 Serbia,69 Bosnia and Herzegovina.70 However, as it was shown in Chapter 2, there are other types of EU agreements with third countries that also include social security coordination provisions, e.g. the pca with Russia.71 As a result, the first option considered in this Section does not focus exclusively on Association Agreements but rather explores all the possibilities of agreements with third countries that could include provisions on social security coordination. As already stated, the choice of a legal basis is based on objective factors amenable to judicial review, which include the aim and content of the measure.72 In that regard, it is therefore important to discuss the aim and content of the measure in mind before discussing the potential legal base(s). In this Section, the aim of the EU agreements would be to pursue a common EU 59 60 61 62 63 64 65 66 67 68 69 70 71 72

Article 68 (1) of emaa with Algeria. Articles 62 and 63 of the emaa with Egypt. Article 80 of the emaa with Jordan. Article 65 of the emaa with Lebanon. Article 64 of the emaa with Israel. Article 65(1) of the emaa with Morocco. Article 65(1) of the emaa with Tunisia. Article 46 of the saa between the European Union and the former Yugoslav Republic of Macedonia. Article 48 of the saa between the European Union and the Republic of Albania. Article 51 of the saa between the European Union and the Republic of Montenegro. Article 51 of the saa between the European Union and the Republic of Serbia. Article 49 of the saa between the European Union and Bosnia and Herzegovina. Article 24 of the pca with Russia. Case C-​300/​89 Commission v. Council (Titanium Dioxide), ECLI:EU:C:1991:244, para.10; Case C-​338/​01 Commission v. Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253, para.54.

EU Agreements as a First ‘Solution’ to Develop a Common EU

253

approach to social security coordination with third countries so as to provide a uniform instrument, i.e. an EU agreement per third country that includes social security coordination provisions. Hence, the content of the proposed EU agreement covers many aspect of the relationship with a third country and includes some provisions on social security coordination. It would be an EU agreement with a third country that encompasses several aims in the establishment of a special relationship (Association Agreement under Article 217 tfeu) or the development of cooperation (Partnership Cooperation Agreement under 208 or 212 tfeu) or the creation of trade cooperation (Free Trade Agreement under Article 207 tfeu). 2.1 The Inclusion of Social Security Provisions in Association Agreements Article 217 tfeu provides that: ‘The Union may conclude with one or more third countries or international organisations agreements establishing an association involving reciprocal rights and obligations, common action and special procedure’. Association Agreements are certainly the primary instruments permitting to achieve the closest cooperation between the EU and third countries.73 As it was discussed under Chapter 2, the EU has already concluded Association Agreements that include social security coordination provisions with third countries.74 Those Association Agreements have been adopted on the legal basis of Article 217 tfeu.75 Considering their current form and practice, several recommendations can be made concerning the use of the framework of Association Agreements for the purpose of ensuring a common EU approach to social security coordination. Firstly, the analysis of the Association Agreements conducted in Chapter 2 has highlighted that the social security coordination provisions in the Association Agreements often need further implementation by decisions of the Associations Councils. Indeed, the social security provisions in the Association Agreements call for further measures to be taken by the Association Council in order to secure, for example, the export of benefits. The only Association Council that has taken further measures is the EU-​Turkey Association Council with the adoption of Decision 3/​80. However, it must be said that Decision

73 74 75

It should be noted that since the Haegeman case in 1974, it is clear that Association Agreements form an integral part of Union law for which the Court of Justice has jurisdiction. Case C-​181/​73 Haegemann v Belgian State, ECLI:EU:C:1974:41, para.11. Chapter 2, pp.61–​100. Article 217 tfeu allows the EU to conclude Association Agreements with third countries concerning all fields covered by the Treaties, hence also including social security coordination. Case C-​12/​86 Demirel v Stadt Schwäbisch Gmünd, ECLI:EU:C:1987:400, para.9.

254 

Chapter 5

3/​80 refers essentially to the rules of Regulation 1408/​71 which needed to be complemented by the rules of the implementing Regulation 574/​72. Despite a proposal by the Commission, the Council of the EU never took further measures so as to implement the rules found in Decision 3/​80.76 Since then, Regulation 1408/​71 has been replaced by Regulation 883/​2004. Therefore, not only Decision 3/​80 has never been implemented fully but its references to the EU legislation are outdated. Concerning that last issue, the Council of the EU has adopted a Draft Decision on the position to be taken on behalf of the EU in the EU-​Turkey Association Council with regard to the update of Decision 3/​80.77 The EU-​Turkey Association Council has however not yet taken a decision on the matter. This lack of decision by the EU-​Turkey Association Council could be explained by the fact that the draft Decision provides for rights of EU citizens in Turkey whereas the current text of Decision 3/​80 only concerns the rights of Turkish workers in the EU.78 This reciprocal element might be a hurdle for the Turkish government to agree to the draft Decision in the Association Council. Further, and most importantly for the Turkish side, the draft Decision does not include the export of non-​contributory cash benefits whereas it is possible to export non-​contributory cash benefits under Decision 3/​80.79 This might add to the unwillingness from the Turkish government to agree to the draft Decision.80 In other Association Agreements, the Member States of the 76

77

78 79

80

Proposal for a Council Regulation (eec) implementing within the European Economic Community Decision No 3/​80 of the eec-​Turkey Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C 110/​1. Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​19. For a comparison of the rules contained in Decision 3/​80 with the rules provided in the Draft Decision, see Chapter 3, pp. 166–​170. The current version of Decision 3/​ 80 does not mention the non-​ export of non-​ contributory benefits. The lack of mention does not mean that Turkish workers are entitled to export of non-​contributory benefits. On this issue, see the discussion on pp. 82–​83 on the Akdas case. P. Minderhoud pointed out that there is no political will from the Turkish side to have a new Decision of the Association Council on social security coordination. P. Minderhoud, ‘Decision 3/​80 of the eec-​Turkey Association Council: Significance and Developments’, in D. Thym & M. Zoeteweij-​Turhan, Rights of Third-​Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015) 178.

EU Agreements as a First ‘Solution’ to Develop a Common EU

255

EU have also adopted Council Decisions on the position to be taken on behalf of the EU in the Association Councils.81 However, the Association Councils of the Associations Agreements have not, so far, adopted the decisions in order to implement the social security provisions in the Association Agreements. According to Commission and Council’s officials, the negotiations are at different stages. The Draft Decisions need to be complemented by technical Annexes. The technical Annexes contain, for example, a list of benefits which will not be exportable. For Morocco, the negotiations of the technical Annex are finalised. Whereas for Tunisia and Algeria, negotiations are still ongoing.82 Despite the lack of implementation by the legislator, as already explained in Chapter 2, some social security provisions of the Association Agreements have been granted direct effect83 by the Court of Justice.84 Those provisions are Article 3 on equal treatment and Article 6 on the export of pension rights in the context of Decision 3/​80 (EU-​Turkey Agreement),85 Article 65 on equal treatment in the Euro-​Mediterranean Association Agreement with Morocco,86 Article 68 on equal treatment in the Euro-​Mediterranean Association Agreement with Algeria.87 Hence, one might be tempted to consider this line of case law as being beneficial for migrant workers as it would give them the possibility to rely directly on those provisions of the Association Agreements. However, since those judgments from the Court, the Council has been reluctant to add any precise and unconditional provisions in Association Agreements.88 As a consequence, it can be ascertained that if future Association Agreements would contain provisions on social security coordination, such provisions 81

82 83 84 85 86 87 88

For example, Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association citation the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, with regard to the adoption of provisions on the coordination of social security systems, 2010/​ 697/​EU, [2010] OJ L 306/​1. Interviews with Commission and Council’s officials. Direct effect implies that individuals can rely on those provisions before courts. See, inter alia, Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36; Case C-​23/​02 Alami, ECLI:EU:C:2003:89; Case C-​113/​97 Babahenini v Belgian State, ECLI:EU:C:1998:13; Case C-​276/​06 El Youssfi, ECLI:EU:C:2007:215. Case C-​262/​96 Sürül, ECLI:EU:C:1999:228; Case C-​ 485/​ 07 Akdas and Others, ECLI:EU:C:2011:346. Case C-​18/​90 Office national de l’emploi v Kziber, ECLI:EU:C:1991:36; Case C-​336/​05 Echouikh, ECLI:EU:C:2006:394 (on the new emaa with Morocco). Case C-​103/​94 Krid v Caisse nationale d’assurance vieillesse des travailleurs salariés, ECLI:EU:C:1995:97. R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008) 361.

256 

Chapter 5

would not produce any direct effect and would need further Association Council decisions. It can be concluded that the current state of the social security coordination provisions in the Association Agreements is disappointing when it comes to securing migrants’ social security rights. Without the Association Councils’ Decisions implementing the social security coordination provisions found in the Association Agreements, those provisions stay at the level of political promises. If the EU wants to pursue the path of developing a common EU approach through the adoption or the amendment of Association Agreements, the Association Agreements need to contain unconditional social security coordination rights instead of political promises. However, the inclusion of unconditional and detailed social security coordination provisions triggers the question of the need to add a legal base in order to reflect the importance of the social security coordination rules in the Association Agreements. If one takes the traditional approach followed by the Court of Justice concerning the choice of a legal basis,89 a measure can be adopted using several legal bases if such a measure contains several components/​purposes which are inseparably linked and one component cannot be considered incidental to the other.90 Furthermore, the more extensive and unconditional the social security coordination provisions in the Association Agreements would be, the more it might be necessary to add a legal base such as Article 48 tfeu.91 That being said, the traditional approach to the choice of a legal basis does not apply to Article 217 tfeu. Article 217 tfeu is a special legal basis as it is generally considered as a stand-​alone provision for the conclusion of Association Agreements. This means that there is no need to add another legal basis for the conclusion of Association Agreements as long as Article 217 tfeu is used. Despite the general rule that Article 217 tfeu is a stand-​alone provision, the practice of Association Agreements has showed some cracks into that rule. An exception to the fact that Article 217 tfeu is a stand-​alone provision has taken place in the context of the conclusion of 89

90 91

Inter alia, Case C-​155/​91 Commission v Council, ECLI:EU:C:1993:98; Case C-​36/​98 Spain v Council, ECLI:EU:C:2001:64; Case C-​338/​01 Commission v Council, ECLI:EU:C:2004:253; Case C-​91/​05 Commission v Council, ECLI:EU:C:2008:288; Case C-​155/​07 Parliament v Council, ECLI:EU:C:2008:605; Case C-​130/​10 Parliament v Council, ECLI:EU:C:2:2012:472; Case C-​377/​12 Commission v Council, ECLI:EU:C:2014:1903. For example: Case C-​130/​10 Parliament v Council, ECLI:EU:C:2:2012:472, paras.42–​45. This argument is derived from the findings of the Court in the pca Philipine case where the Court examined whether the provisions were drafted in concrete and detailed terms as to the manner in which the cooperation was to be implemented. Case C-​377/​12 Commission v Council, ECLI:EU:C:2014:1903, paras.56–​58. The use of Article 48 tfeu is discussed later in this Chapter on pp. 250–​252.

EU Agreements as a First ‘Solution’ to Develop a Common EU

257

the Association Agreement with Ukraine92 and the Association Agreements with Moldova and Georgia.93 However, this novelty of adding Treaty legal bases to Article 217 tfeu for the conclusion of an Association Agreement seemed to have been politically driven94 and uniquely confined to reflect cfsp measures.95 Another exception to the unnecessary addition of a legal basis next to Article 217 tfeu can be found in the case law of the Court of Justice in the context of a Council Decision on the position to be taken on behalf of the EU in the EU-​Turkey Association Council.96 In that case, the Court of Justice held that the correct legal bases should have been Article 217 tfeu in combination with Article 48 tfeu. This judgment should however not be considered as providing for a general possibility to combine Article 217 tfeu with Article 48 tfeu. That judgment must be seen in the unique context of Decision 3/​80 and the EU-​Turkey Ankara Agreement. The Court’s judgment relied on the already existing Association Agreement between the EU and Turkey. To sum-​up, 92

93

94

95

96

The first Council Decision is based on Articles 31(1) and 37 teu in order to reflect the Common Foreign and Security Policy (cfsp) aspects of the Agreement. The second Council Decision is on the Association Agreement itself and is based on Article 217 tfeu. Finally, the third Council Decision concerns the equal treatment of workers and has been based on Article 79(2)(b) tfeu. Council Decision of 17 March 2014, 2014/​295/​ EU, [2014] OJ L 161/​1; Council Decision of 23 June 2014, 2014/​668, [2014] OJ L 278/​1; Council Decision of 23 June 2014, 2014/​669, [2014] OJ L 278/​6. In the Association Agreements with Moldova and Georgia, several legal bases (Articles 37, 31(1), 218(5) and (8) tfeu) were used in order to reflect the csfp elements contained in the Association Agreements. Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, 2014/​492/​EU, [2014] OJ L 260/​1; Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part, 2014/​494/​EU, [2014] OJ L 261/​1. A. Ott explains that the split-​up could only be explained by the specificities attached to Article 79tfeu with regard to the UK, Ireland and Denmark and the opt-​in/​opt-​out possibilities therein. A. Ott, ‘The legal bases for international agreements post-​Lisbon: of Pirates and the Philippines’ 21 Maastricht Journal of European and Comparative Law (2014) 747. For an extensive overview of the reasons behind the multiple legal basis in the Association Agreement with Ukraine, See G. Van der Loo, The EU-​Ukraine Association Agreement and Deep and Comprehensive Free Trade Area. A  New Legal Instrument for EU Integration Without Membership (Brill 2016)  166–​172; R.  Petrov, ‘Legal Basis and Scope of the New EU-​Ukraine Enhanced Agreement. Is there any room for further speculation?’ EUI Working Papers (2008) 1–​19. Case C-​81/​13 United Kingdom v. Council, ECLI:EU:C:2014:2449.

258 

Chapter 5

it is argued that those practical and jurisprudential developments are in fact exceptional and that the general rule of Article 217 tfeu as a stand-​alone provision still applies. As a consequence, it would be legal feasible to conclude an Association Agreement with an extensive social security coordination regime under the legal basis of Article 217 tfeu. Finally, the conclusion of an Association Agreement under Article 217 tfeu implies ‘privileged links with a non-​member country which must, at least to a certain extent, take part in the Community system’.97 An Association Agreement does not have to be concluded for the purpose of preparing accession to the EU, but its conclusion emphasises a special relationship between a third country and the EU.98 Three third countries have been selected in this research: Turkey, India and usa.99 Given the fact that Turkey and the EU have already concluded an Association Agreement, only the potential conclusion of an Association Agreement with India and usa remains to be discussed. There are existing relationships between the usa and the EU on the one hand through their Transatlantic Partnership,100 and India and the EU on the other hand through their Strategic Partnership.101 However, those relationships are far from comparable to the privileged relationship envisaged under Article 217 tfeu. In order to envisage the adoption of an eu-​u sa Association Agreement or EU-​India Association Agreement based on Article 217 tfeu, there is first a need for a strengthening and deepening of the current relationships between those third countries and the EU. In conclusion, while developing and furthering the external dimension of EU social security coordination through the conclusion of Association Agreements is legally possible, such a solution is currently not the best option due to political constraints. The current practice of including social security coordination provisions demands further measures to be taken by Association 97

Case C-​12/​86 Demirel v Stadt Schwäbisch Gmünd, ECLI:EU:C:1987:400, para.9. For a complete overview of the case law of the Court of Justice on Association Agreements, See M. Maresceau, ‘The Court of Justice and Bilateral Agreements’, in A. Rosas, E. Levits & Y. Bot (Eds.), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of case law (Asser Press 2013) 693–​717. 98 M. Maresceau, Bilateral agreements concluded by the European Community (Collected Courses of the Hague Academy of International Law, Brill 2004) 318. 99 The scientific considerations behind the selection of those third countries are explained in the Introductory Chapter, pp. 11–​15. 100 Declaration on U.S.-​ EC Relations, 1 December 1990, available at https://​ useu.usmission.gov/​declaration-​u-​s-​ec-​relations/​, last accessed on 31 May 2019. 101 European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final. The latest summit was on the 30th of March 2016. See Joint Statement, 13th EU-​India Summit, Brussels, 30 March 2016.

EU Agreements as a First ‘Solution’ to Develop a Common EU

259

Councils. However, such further measures have been waited for years without success. Compared with the practice of the Member States’ bilateral agreements with third countries that provide for directly effective provisions, the social security coordination provisions in Association Agreements are disappointing in terms of securing migrants’ social security rights. Since the case law of the Court of Justice on direct effect of some provisions, the Council has been reluctant to include precise and unconditional provisions. Finally, Association Agreements imply the development of privileged links with a third country. In that regard, the conclusion of Association Agreements would not fit the relationship envisaged with all third countries and certainly not the current eu-​ usa and EU-​India relationships. The Inclusion of Social Security Provisions in Partnership and Cooperation Agreements (pca s) The pca with Russia provides in Article 24 that the Parties to the Partnership should conclude further agreements on social security coordination including provisions on the aggregation of periods of insurance, residence and employment, transfer of some benefits,102 and entitlement to family allowances for family members of workers residing in the host country. This is currently the only pca mentioning social security coordination. This sole example is interesting as it shows that social security coordination provisions are not widely included in pca s. Furthermore, it shows that, when such provisions are included, they merely call for further measures to be adopted and for guidance as to what should be included in future agreements. Considering this, the prospect of including social security provisions in pca s does not seem the best way forward for achieving a common EU approach to social security coordination with third countries. The inclusion of social security coordination provisions would only be a first step in achieving a common approach as it would need further agreements on social security coordination to be concluded. Despite this practical consideration, the inclusion of social security coordination provisions in pca s would be legally feasible on the legal basis of Article 209 tfeu. Additionally, a Strategic Partnership Agreement based on Article 212 tfeu could include social security coordination provisions, although it must be said that such a possibility has never been used before.103 Both Articles 209 2.2

102 The benefits to be transferred are old-​age, death, industrial accident or occupational disease, or of invalidity resulting therefrom, with the exception of non-​special contributory benefits. 103 For example: The EU-​Canada Strategic Partnership Agreement is based on Articles 37, 212(1) and 218(9) tfeu. This Agreement is provisionally applied since 1 April 2017.

260 

Chapter 5

and 212 tfeu are part of Title iii on Cooperation with third countries and humanitarian aid. However, Article 209 is part of Chapter 1 on Development Cooperation and Article 212 tfeu is part of Chapter 2 on Economic, Financial and Technical Cooperation with third countries. The difference between the two is that Article 209 tfeu is designed to conclude EU agreements with developing third countries whereas Article 212 tfeu is targeted towards developed third countries.104 Articles 209 and 212 tfeu both provide for the ordinary legislative procedure. Under Article 209 tfeu, the European Parliament and the Council might adopt measures related to the development cooperation policy. The development cooperation policy concerns primarily the reduction and then ultimately the eradication of poverty in third countries.105 Keeping that primary aim in mind, measures within the development cooperation policy can also pursue the objectives of fostering the sustainable economic, social and environmental development of developing countries.106 The use of that Article is mainly focused on situations in third countries; therefore it might be questioned whether a social security provision that would cover the social security rights of EU citizens could be included in a pca adopted solely on the basis of Article 209 tfeu. Although it might be legally feasible to include social security coordination provisions in pca s, it still needs to be questioned whether a pca framework would fit the current relationships between the EU and the third countries selected for the purpose of this research. Concerning first the position of Turkey, there is already an Association Agreement with Turkey and Decision 3/​ 80 on social security which still needs to be implemented by the Association Council. Therefore, the inclusion of social security provisions would be superfluous given the fact that they would need to be further implemented. India

It does not contain any reference to social security coordination. See, Joint Proposal for a Council Decision on the position to be adopted, on the Unionʼs behalf in the Joint Ministerial Committee and the Joint Cooperation Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Canada of the other part, as regards the adoption of the Rules of Procedure of the Joint Ministerial Committee, the Terms of Reference of the Joint Cooperation Committee and the Terms of Reference of the subcommittees established by the Joint Cooperation Committee, 2017/​0279 (nle). 104 P. J.  Kuijper, J.  Wouters, F.  Hoffmeister, G.  De Baere, & T.  Ramopoulos, The Law of EU External Relations. Cases, Materials, and Commentary on the EU as an International Legal Actor (Oxford University Press 2013) 620. 1 05 Article 208(1), second sentence tfeu. 106 Such objective is listed in Article 21(2)(d) teu. Case C-​377/​12 Commission v Council, ECLI:EU:C:2014:1903, para.37.

EU Agreements as a First ‘Solution’ to Develop a Common EU

261

and the EU have concluded a Cooperation Agreement in 1994107 under inter alia Article 130y EC Treaty,108 now Article 209 tfeu. This Cooperation Agreement serves as the basis for the political dialogue between the EU and India which was further reinforced by the conclusion of a Strategic Partnership in 2004.109 The Cooperation Agreement does not mention the issue of social security coordination. Furthermore, most of the provisions are worded in a way that calls for further measures to be taken in the context of the Agreement. If a new Cooperation Agreement between the EU and India were to be adopted, and if such a new Cooperation Agreement would include a social security provision, it would undoubtedly be a vague provision calling for further measures on social security coordination to be adopted by the Parties to the Cooperation Agreement. The same conclusion would apply to an Agreement concluded with the usa on the basis of Article 212 tfeu. Finally, the added value of the inclusion of social security provisions in a Cooperation Agreement compared to the already existing provisions in the Member States’ bilateral agreements must be seriously questioned. Indeed, considering that the Member States’ bilateral agreements provide for directly effective provisions, the vague provisions of a pca would not be any added value to migrant workers. In view of all the foregoing considerations, it would not be recommended to pursue a common approach on social security coordination with third countries through the conclusion of pca s or Strategic Partnerships that would include a social security coordination provision. The Inclusion of Social Security Provisions in Free Trade Agreements (fta s) The inclusion of social security coordination provision in fta s on the basis of Article 207 tfeu would not be a recommended policy option to achieve a common EU approach to social security coordination with third countries. In terms of legal competence, the inclusion of social security coordination provisions in fta s could be achieved via the legal basis of Article 207 tfeu. Article 207 tfeu permits the EU to conclude agreements with third countries related to a common commercial policy. According to Article 207(1) tfeu, 2.3

107 Cooperation Agreement between the European Community and the Republic of India on partnership and development, [1994] OJ L 223/​24. 108 The use of that legal basis was confirmed by the Court of Justice in the Case C-​268/​94 Portugal v Council, ECLI:EU:C:1996:461. 109 European Commission, ‘An EU-​India Strategic Partnership’ (Communication) COM (2004) 0430 final.

262 

Chapter 5

‘[T]‌he common commercial policy shall be based on uniform principles, particularly with regard to changes in tariff rates, the conclusion of tariff and trade agreements relating to trade in goods and services, and the commercial aspects of intellectual property, foreign direct investment, the achievement of uniformity in measures of liberalisation, export policy and measures to protect trade such as those to be taken in the event of dumping or subsidies.’. According to the Daiichi case, the common commercial policy relates to trade with third countries.110 However, as it was settled in Daiichi and repeated in Opinion 2/​15 on the fta with Singapore, the mere fact that an EU act is liable to have implications for trade with third countries is not enough for the act to fall within the common commercial policy.111 There must be a specific link with trade in the sense that the act ‘is essentially intended to promote, facilitate or govern such trade and has direct and immediate effects on it’.112 Hence, a future EU fta that would include social security coordination provisions must be primarily linked to trade with a third country. Article 207(1) tfeu further adds that the common commercial policy is to be carried out in the context of the principles and objectives of the EU’s external action. Those principles and objectives can be found in Article 21(1) and (2) teu.113 In Opinion 2/​15, the Court of Justice considered that guaranteeing adequate social protection to workers would fall within the objective of promoting sustainable development under Article 21(2)(f) tfeu.114 Social security coordination provisions guarantee adequate social protection of workers. If the provisions on social security coordination are linked to the provisions of services, such provisions could be seen as specifically linked to trade with a third country and be adopted pursuant to Article 207 tfeu. Despite the legal feasibility to include social security coordination in a fta based on Article 207 tfeu, it must be said that there is no example of an EU

110

Case C-​414/​11 Daiichi Sankyo and Sanofi-​ Aventis Deutschland, ECLI:EU:2013:520, para.50. 111 Case C-​414/​11 Daiichi Sankyo and Sanofi-​ Aventis Deutschland, ECLI:EU:2013:520, para.51; Opinion 2/​15 EU-​Singapore Free Trade Agreement, ECLI:EU:C:2017:376, para.36. 112 Case C-​414/​11 Daiichi Sankyo and Sanofi-​ Aventis Deutschland, ECLI:EU:2013:520, para.51; Opinion 2/​ 15 EU-​ Singapore Free Trade Agreement, ECLI:EU:C:2017:376, paras. 36–​37. 113 Article 21(3) teu, Article 205 tfeu and the second sentence of Article 207(1) tfeu make clear that the EU has to integrate those principles and objectives into the common commercial policy. Opinion 2/​15 EU-​Singapore Free Trade Agreement, ECLI:EU:C:2017:376, para.143. 1 14 Opinion 2/​15 EU-​Singapore Free Trade Agreement, ECLI:EU:C:2017:376, paras.142, 146–​148.

EU Agreements as a First ‘Solution’ to Develop a Common EU

263

fta that include a social security coordination provision. For example, in the context of the EU-​Canada ceta, social security is explicitly excluded from the scope of the agreement.115 The explicit exclusion or the lack of mention of social security in the context of EU fta s is not surprising if one considers the international framework of the wto.116 The gats, which is the wto instrument for trade in services, does not apply to social security.117 The gats only applies to measures by Members affecting trade in services.118 The term ‘services’ does not include services supplied in the exercise of governmental authority119 such as social security. Finally, in terms of content, the social security coordination provision would probably be the same type of provision as the ones found in some of the Association Agreements or Partnership and Cooperation Agreements. This would imply that: if a social security coordination provision were to be included in a fta, that provision would only call for further measures to be taken on social security coordination. 3

Option 2: EU Agreements on Social Security Coordination with Third Countries

The second option put forward by the European Commission in 2012 in order to develop a common EU approach on social security coordination with third countries was to conclude EU agreements on social security coordination with third countries. Such EU agreements do not exist currently. Instead, agreements on social security coordination are concluded between the Member States and third countries. It seems that the idea behind the European Commission’s second option would be to replace the bilateral agreements concluded by the Member States with a single EU agreement on social security coordination per 115 Article 13(2) of Comprehensive Economic and Trade Agreement (ceta) between Canada, of the one part, and the European Union and its Member States, of the other part, 10973/​16, 2016/​0206 (nle). 116 Trade in services under the gats all fall under the common commercial policy under Article 207 tfeu. Furthermore, the Court of Justice held that, due to its general nature and the fact that it was concluded at world level, the gats has a particular importance in the sphere of international action relating to trade in services. Opinion 1/​08 Agreements modifying the Schedules of Specific Commitments under the GATS, ECLI:EU:C:2009:739, paras 118–​119 and 121. 117 General Agreement on Trade in Services, Annex 1b of the wto Agreement. 118 Article i: 1 of the gats. 119 Article i: 3b of the gats.

264 

Chapter 5

third country. As a result, the content of such an EU agreement would resemble the content of the current Member States’ agreements with third countries. In Chapter 3, the analysis of the bilateral agreements show that they provide for specific, detailed and unconditional rules on social security coordination. Consequently, if an EU agreement contained similar rules, a specific legal basis reflecting the content of that agreement on social security coordination would need to be chosen. 3.1 Article 48 tfeu as a Potential Legal Basis Article 48 tfeu provides that the European Parliament and Council adopt measures on social security as they are necessary to provide freedom of movement for workers. Article 48 tfeu is the primary legal basis for the adoption of internal EU social security coordination.120 In that context, Article 48 tfeu has been used to adopt Regulation 833/​2004 which concerns the rules on social security coordination for EU citizens and their family members moving within the EU. There are several references in Article 48 tfeu to the territories of the Member States or to the EU. Clearly designed to adopt internal measures, it needs to be considered whether Article 48 tfeu could also be used for the adoption of external social security coordination rules, i.e. provisions regulating the social security situation of third-​country nationals and EU citizens in the EU as well as in third countries. Firstly, considering the case law of the Court of Justice in Meade121 and Khalil122 as well as the practice of the adoption of Regulation 1231/​2010,123 Article 48 tfeu alone would not be considered as an appropriate legal basis for adopting measures covering the situation of third country nationals. Secondly, in the EU-​Turkey Agreement case, both the Advocate General and the Court of Justice have rejected the use of Article 48 tfeu for the adoption of a measure governing external situations. The EU-​Turkey Agreement case was about the annulment of a Council Decision 1 20 F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015) 14. 121 In Meade, the Court held that Article 48 of the eec Treaty (now Article 45 tfeu) on the ‘free movement of workers’ concerned only workers of the Member States. Case C-​238/​ 83 Meade, ECLI:EU:C:1984:250, para.7. 122 In Khalil, the Court accepted the use of Article 51 EC (now Article 48 tfeu) as a legal basis for Regulation 1408/​71 covering the situation of stateless persons and refugees but only to the extent that Regulation 1408/​71 only applied to a ‘very restricted category of persons’. Joined Cases C-​95/​99 to C-​98/​99 and C-​180/​99 Khalil, ECLI:EU:C:2001:532, para.57. 123 After the Khalil case, Regulation 1231/​2010 on the extension of the rules under Regulation 833/​2004 to all third-​country nationals residing and moving within the EU has been based on Article 79(2)(b) tfeu.

EU Agreements as a First ‘Solution’ to Develop a Common EU

265

on the position to be adopted on behalf of the EU in the context of the EU-​ Turkey Association Agreement concerning the update of Decision 3/​80 on social security coordination. Based on Article 48 tfeu, the Council Decision was challenged by the UK who argued for Article 79(2)(b) tfeu as the correct legal basis. Advocate General Kokott considered that Article 48 tfeu could not be used to define the rights of either third-​country nationals or EU citizens outside the EU.124 The Court of Justice held that Article 48 tfeu could only be used as a sole legal basis if the measure adopted is ‘in the sphere of the internal policies and actions of the European Union or of the external actions relating to third countries which can be placed on the same footing as a Member State of the European Union’.125 So far, the eea efta States and the Swiss Confederation are the only third countries that have been placed on the same footing as a Member State of the European Union for the purpose of social security coordination.126 In the context of EU agreements with other third countries, it can be concluded that Article 48 tfeu alone would not be an appropriate legal basis. Furthermore, the use of Article 48 tfeu in combination with Article 216 tfeu does not seem appropriate either. As already explained before in this Chapter, Article 216 tfeu provides that the EU can conclude agreements in four instances.127 In the context of an EU agreement on social security coordination with a third country based on Article 48 tfeu, the second instance would be considered. Hence, the EU would have an external competence when 124 Opinion of Advocate General Kokott in Case C-​ 81/​ 13 United Kingdom v Council, ECLI:EU:C:2014:2114, para. 72. 125 Case C-​81/​13 United Kingdom v. Council, ECLI:EU:C:2014:2449, para. 59. 126 Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, para.58; Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para.65. In the context of social security coordination with the EU, the eea efta States and the Swiss Confederation are to be considered as members of the EU without membership. A. Lazowski calls this ‘integration without membership’. Furthermore, these countries are parties to what M.  Maresceau called ‘integration-​oriented agreements’. Those ‘integration-​oriented agreements’ are EU agreements with third countries containing provisions of EU law that have to be applied in the third countries as if the third countries were members of the EU. See A. Lazowski, ‘Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership in the European Union’45 Common Market Law Review (2008), 1433–​1458; M. Maresceau, ‘Les accords d’intégration dans les relations de proximité de l’Union européenne’, in C. Blumann (Ed.), Les frontières de l’Union européenne (Bruylant 2013) 151–​192. 127 As a reminder:  (1) when the Treaty so provide; (2)  where the conclusion of an agreement is necessary in order to achieve the Union’ policies or objectives referred to in the Treaties; (3) where the conclusion of an agreement is provided for in a legally binding Union act; (4) where the conclusion of an agreement is likely to affect common rules or alter their scope.

266 

Chapter 5

the Treaty confers an internal competence on the EU in a domain for the purpose of attaining a specific objective, and participation of the EU in an external agreement is necessary for the attainment of that objective. The first element is about finding an existing internal competence (here Article 48 tfeu) on the specific objective to be attained by the EU externally, whereas the second element refers to the effet utile of exercising the internal competence externally.128 Considering the effet utile element, it would be required to prove that the conclusion of an EU agreement on social security coordination with third countries would be necessary in order to achieve the objective under Article 48 tfeu. It is difficult to see how an agreement with third countries would be useful to pursue freedom of movement of workers within the EU. In addition, in the EU-​Turkey Agreement case, the use of Article 48 tfeu in combination with Article 216 tfeu has been ignored by the Court of Justice even though the Advocate General had discussed this possibility.129 The EU-​Turkey Agreement case is interesting nonetheless as the Court of Justice did not entirely reject the use of Article 48 tfeu in external situations. Instead of using Article 48 tfeu as the sole legal basis or a combination of Article 48 tfeu with Article 216 tfeu, the Court found a combination of Article 48 tfeu with 217 tfeu.130 However, for the purpose of adopting future EU agreements on social security coordination with third countries, the combination of Article 48 tfeu with 217 tfeu must be considered with great caution. The combination proposed by the Court in the EU-​Turkey Agreement case took place in the context of an already existing Association Agreement between the EU and Turkey based on Article 217 tfeu. Future EU agreements on social security coordination with third countries are thought of as new agreements. Hence, those EU agreements are not considered in the context of an already existing Association Agreement. As a result, the recourse to Article 217 tfeu in

128 For discussion about the erta judgment and the development followed by the Court of Justice in later cases, See G. de Baere, Constitutional Principles of EU External Relations (Oxford University Press 2008)  16–​28; A.  Dashwood & J.  Heliskoski, ‘The Classic Authorities Revisited’, in A.Dashwood & C. Hillion (Eds.), The General Law of EC External Relations (Sweet & Maxwell 2000) 3–​19; P. Eeckhout, EU External Relations Law (Second Edition, Oxford University Press 2011)  70–​119; M.  Cremona, ‘External Relations and External Competence of the European Union: The Emergence of an Integrated Policy’, in P. Craig & B. de Burca, The Evolution of EU Law (Second Edition, Oxford University Press 2011) 219–​226. 129 Opinion of Advocate General Kokott in Case C-​ 81/​ 13 United Kingdom v Council, ECLI:EU:C:2014:2114, paras. 101–​113. 130 Case C-​81/​13 United Kingdom v. Council, ECLI:EU:C:2014:2449, paras. 63–​64.

EU Agreements as a First ‘Solution’ to Develop a Common EU

267

combination with Article 48 tfeu does not fit the option of future EU agreements on social security coordination. This means that neither the use of Article 48 tfeu alone can be considered, nor the combination of Article 48 tfeu with Article 216 tfeu or 217 tfeu, for the purpose of adopting external rules on social security coordination covering situations of third-​country nationals. 3.2 Article 79(2)(b) tfeu as a Potential Legal Basis Article 79(2)(b) tfeu provides that the European Parliament and the Council might adopt measures concerning ‘the definition of the rights of third-​country nationals residing legally in a Member State, including the conditions governing freedom of movement and of residence in other Member States’. Additionally, Article 79(2)(b) tfeu is to be used in order to realise the objectives of ­Article 79(1) tfeu. Article 79 tfeu is aimed at developing a common immigration policy. According to Article 79(1) tfeu, a common immigration policy should ensure ‘the efficient management of migration flows, fair treatment of third-​ country nationals residing legally in Member States, and the prevention of, and enhanced measures to combat illegal immigration and trafficking in human beings’. Two main elements need to be considered with regard to the use of Article 79(2)(b) tfeu for the conclusion of an EU agreement on social security coordination with third countries. Firstly, it has to be assessed whether Article 79(2) (b) tfeu can be used in an external context, i.e. in situations not limited to the territories of the Member States. Secondly, it must be considered whether Article 79(2)(b) tfeu can be used for covering the situations of EU citizens. Firstly, considering the use of Article 79(2)(b) tfeu in an external context, it must be said that this provision does not provide explicitly for the conclusion on an international agreement. Therefore, one must consider the doctrine of implied powers, now codified in Article 216(1) tfeu, in order to use Article 79(2)(b) tfeu in an external context. It means that a competence for EU’s external action might be implied from an EU internal competence (here Article 79(2)(b) tfeu) if the achievement of the EU’s external action is necessary to achieve the objective of the EU internal competence.131 In that regard, it must be considered whether the conclusion of EU agreements on social security coordination with third countries would be necessary to achieve the goal of defining the rights of third-​country nationals legally residing in a Member 131

Case C-​22/​70 Commission v.  Council, ECLI:EU:C:1971:32 (erta); Joined cases C-​3/​ 76, 4/​76  & 6/​76 Cornelis Kramer and Others, ECLI:EU:C:1976:114; Opinion 1/​ 76, Draft Agreement establishing a European laying-​up fund for inland waterway vessels, ECLI:EU:C:1977:63.

268 

Chapter 5

State. More generally, EU agreements on social security coordination with third countries would need to pursue the overall goal of Article 79(1) tfeu which enshrines the ‘fair treatment of third-​country nationals residing legally in a Member State’. EU agreements on social security coordination with third countries would have the purpose of ensuring the maintenance and the transfer of migrant workers’ social security rights. In that context, it can be said that the conclusion of EU agreements on social security coordination with third countries would permit the pursuit of the objectives found in Article 79(2)(b) tfeu and more generally in Article 79(1) tfeu. Secondly, future EU agreements on social security coordination with third countries would not only regulate the situation of third-​country nationals in the Member States but also the situation of third-​country nationals and EU citizens in third countries. Following the eea case,132 the EU-​Swiss Agreement case133 and the EU-​Turkey Agreement case,134 it can be assumed that Article 79(2)(b) tfeu would not be an appropriate legal basis for the conclusion of EU agreements on social security coordination with third countries. In those three cases, the Council Decisions on the position to be taken on behalf on the EU in the context of the implementation of the eea Agreement, the EU-​ Swiss Agreement on Free Movement of Persons and the EU-​Turkey Agreement were challenged by the UK before the Court of Justice. In the three cases, the Council Decisions were taken on the legal basis of Article 48 tfeu only. However, the UK opposed that legal basis and proposed instead Article 79(2) (b) tfeu using the argument that this legal basis has been used before in the context of implementation of social security provisions of other Association Agreements.135 The Court of Justice rejected the use of Article 79(2)(b) tfeu

1 32 133 134 135

Case C-​431/​11 United Kingdom v. Council, ECLI:EU:C:2013:589. Case C-​656/​11 United Kingdom v. Council, ECLI:EU:C:2014:97. Case C-​81/​13 United Kingdom v. Council, ECLI:EU:C:2014:2449. Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association citation the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, with regard to the adoption of provisions on the coordination of social security systems, 2010/​697/​EU, [2010] OJ L 306/​ 1; or Council Decision of 21 October 2010 on the position to be taken by the European Union within the Stabilisation and Association Council set up by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part, with regard to the adoption of provisions on the coordination of social security systems, 2010/​702/​EU, [2010] OJ L306/​ 35; Case C-​431/​11 United Kingdom v. Council, ECLI:EU:C:2013:589, para.66.

EU Agreements as a First ‘Solution’ to Develop a Common EU

269

in all three cases.136 Concerning the Council Decision in the context of the EU-​ Turkey Agreement, the Court highlighted that the object of the draft Decision was the adoption of a regime coordinating social security systems for Turkish nationals in the EU Member States but also for EU citizens and their family members in Turkey.137 As a result, the Court came to the conclusion that the contested Decision pursued another purpose than the development of a common immigration policy enshrined in Article 79 tfeu.138 In conclusion, it can be said that Article 79(2)(b) tfeu would be an appropriate legal basis for covering the situations of third-​country nationals but not for covering the situations of EU citizens in third countries.139 3.3 A Combination of Article 48 tfeu and Article 79(2)(b) tfeu If Article 48 tfeu cannot be used for covering situations of third-​country nationals and Article 79(2)(b) tfeu cannot be used alone for covering situations of EU citizens, the combination of the two provisions in order to reflect those two aspects could be considered. Hence, Article 48 tfeu would be used to cover the situation of EU citizens and Article 79(2)(b) tfeu to cover the situation of third-​country nationals. In the case law of the Court of Justice, multiple legal bases are the exceptions.140 Multiple legal bases are allowed for measures including multiple components and aims which are inseparably linked, without any aim being predominant and the other being incidental.141 Furthermore, multiple legal bases are accepted provided that the procedures contained in those legal bases 136

Case C-​431/​11 United Kingdom v. Council, ECLI:EU:C:2013:589, paras.62–​64; Case C-​81/​ 13 United Kingdom v. Council, ECLI:EU:C:2014:2449, paras. 40–​46. 137 Case C-​81/​13 United Kingdom v. Council, ECLI:EU:C:2014:2449, para. 44. 138 Case C-​81/​13 United Kingdom v. Council, ECLI:EU:C:2014:2449, para. 46. 139 A. Dashwood considers that the situation of EU citizens in third countries is ancillary to the situations of third-​country nationals in the EU. He also adds that the situation of EU citizens in third countries is a matter to be dealt with by the third countries and not by the EU Member States. He concludes then that Article 79(2)(b) tfeu is the correct legal base for adopting decisions of the Council on the position of the EU to be taken in Association Councils with regard to the update of social security coordination provisions. A. Dashwood, ‘EU Acts and Member State Acts in the Negotiation, Conclusion, and Implementation of International Agreements’, in M. Cremona & C. Kilpatrick (Eds.), EU Legal Acts. Challenges and Transformation (Oxford University Press 2018) 238–​240. 1 40 Case C-​300/​89 Commission v. Council (Titanium Dioxide), ECLI:EU:C:1991:244, paras. 17–​ 21; Case C-​338/​01 Commission v. Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253, paras.56–​57. 141 Case C-​300/​89 Commission v. Council (Titanium Dioxide), ECLI:EU:C:1991:244, paras. 17–​ 21; Case C-​338/​01 Commission v. Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253, paras.56–​57.

270 

Chapter 5

are compatible.142 Hence, for a combination of Article 48 tfeu and Article 79(2)(b) tfeu, it would be important to demonstrate that there is a need to include both legal bases in order to reflect both components: the situations of EU citizens and the situations of third-​country nationals. Additionally, the procedures under Article 48 tfeu and Article 79(2)(b) are compatible as both articles prescribe the ordinary legislative procedure. Consequently, following the case law of the Court on multiple legal bases, the combination of Article 48 tfeu and Article 79(2)(b) tfeu could be envisaged. Although it seems possible to combine Article 48 tfeu and Article 79(2)(b) tfeu, the use of Article 48 tfeu for adopting measures on social security coordination with third countries does not seem appropriate. While it is true that the Court of Justice has accepted the use of Article 48 tfeu for the adoption of Council Decisions on the position to be taken on behalf of the EU in the eea Agreement and the EU-​Swiss Agreement cases,143 those cases should be seen in the light of the special relationship the EU has with the eea efta States and the Swiss Confederation. Indeed, the Court has held that the eea efta States and the Swiss Confederation are to be considered as Member States of the EU for the purpose of social security coordination.144 It is only in that context that the Court accepted Article 48 tfeu as a legal basis to extend the EU social security coordination rules to those countries. However, such a unique relationship does not exist with any other third country. As a result, it would be difficult to argue for the use of Article 48 tfeu for the adoption of an EU agreement on social security coordination with third countries. Finally, a practical consideration must be highlighted. Article 79(2)(b) tfeu is part of Title v of Part Three on the Area of Freedom, Security and Justice. As a result, Protocol No 21 and Protocol No 22 apply.145 Even though the UK is expected to leave the EU by 29 March 2019,146 the potential lack of participation 1 42 For example, Case C-​130/​10 Parliament v Council, ECLI:EU:C:2:2012:472, paras.42–​45. 143 Case C-​431/​11 United Kingdom v.  Council, ECLI:EU:C:2013:589; Case C-​656/​11 United Kingdom v. Council, ECLI:EU:C:2014:97. 144 Case C-​431/​11 United Kingdom v. Council, ECLI:EU:C:2013:589, para.58; Case C-​656/​11 United Kingdom v. Council, ECLI:EU:C:2014:97, para. 58. 145 Protocol (No) 21 on the position of the United Kingdom and Ireland in respect of the Area of Freedom, Security and Justice, OJ C326/​295, 26.10.2012; Protocol (No) 22 on the position of Denmark, OJ C326/​299, 26.10.2012. 146 The UK government triggered Article 50 teu on the 29 March 2017. According to Article 50 teu, the UK has two years to negotiate its departure from the EU. This implies that the UK will become a third country on the 29 March 2019. See UK Prime Minister’s letter to Donald Tusk triggering Article 50, 29th March 2017, available at https://​www.gov.uk/​ government/​uploads/​system/​uploads/​attachment_​data/​file/​604079/​Prime_​Ministers_​ letter_​to_​European_​Council_​President_​Donald_​Tusk.pdf, last accessed on 31 May 2019;

EU Agreements as a First ‘Solution’ to Develop a Common EU

271

of Denmark and Ireland in a common EU approach needs to be carefully considered. Denmark automatically does not participate in any legislative measures based on Article 79 tfeu. Therefore, Denmark would not be part of any common EU approach on social security coordination with third countries based on Article 79(2)(b) tfeu. Furthermore, the UK and Ireland would have the possibility to opt-​in for legislative measures based on Article 79 tfeu. Considering that the purpose of having an EU agreement on social security coordination with third countries is to promote a common EU approach, the use of Article 79(2)(b) tfeu would hinder that objective. 3.4 Article 153 tfeu as an Alternative Legal Basis Article 153 tfeu provides that the Union should support and complement the activities of the Member States in several fields including social security and social protection of workers. Article 153 tfeu is to be read in light of the objectives listed in Article 151 tfeu. Article 151 tfeu provides for the social policy objectives of the Union as comprising: ‘the promotion of employment, improved living and working conditions, so as to make possible their harmonisation while the improvement is being maintained, proper social protection, ­dialogue between management and labour, the development of human resources with a view to lasting high employment and the combating of exclusion.’. An agreement on social security coordination could be considered to pursue the objective of social protection listed in Article 151 tfeu. According to Article 153(2)(a) tfeu, the types of measures to be adopted under Article 153 tfeu are ‘measures designed to encourage cooperation between Member States through initiatives aimed at improving knowledge, developing exchanges of information and best practices, promoting innovative approaches and evaluating experiences, excluding any harmonisation of the laws and regulations of the Member States’. The conclusion of EU agreements on social security coordination with third countries goes further than the encouragement of cooperation between the Member States. Article 153(2)(b) tfeu also provides that the European Parliament and the Council may adopt directives setting minimum requirements for gradual implementation of one of the fields referred to in Article 153(1) tfeu, here social security and social protection of workers. Based on Article 153(2) (a) and (b) tfeu, it can be ascertained that there is no explicit external competence under Article 153 tfeu. That being said, could UK Prime Minister’s Commons statement to the European Parliament on triggering Article 50, 29 March 2017, available at https://​www.gov.uk/​government/​speeches/​prime-​ ministers-​commons-​statement-​on-​triggering-​article-​50, last accessed on 31 May 2019.

272 

Chapter 5

there be an implied external competence? In other words, could it be legally possible to conclude an international agreement with a third country on social security coordination by using Article 153 tfeu in combination with Article 216 tfeu? In the case of Article 153 tfeu, only the second instance of Article 216 tfeu would be relevant; i.e. where the conclusion of an agreement is necessary in order to achieve one of the Union’s policies or objectives referred to in the Treaties. Article 151 tfeu mentions social protection as one of the objectives to be furthered by Article 153 tfeu. In order to use Article 153 tfeu in combination with Article 216 tfeu, following the erta doctrine, one needs to show how an agreement with a third country on social security coordination is necessary to achieve the objective of social protection. While this could be theoretically possible, it has never happened. The international agreements that included social protection provisions were not based on Article 153 tfeu in combination with Article 216 tfeu but were in fact broader agreements, such as fta s. For example, the EU-​Singapore Free Trade Agreement (‘eusfta’) comprises elements on the social protection of workers.147 While the Advocate General Scharpston suggested in her Opinion that the elements on the social protection of workers could be seen in the light of the objectives set out in Article 151 tfeu and Article 153 tfeu,148, 149 the Court found that the social protection of workers should be considered in light of the objective of ‘sustainable development’ found in Article 21(2)(f) teu which in turn was part of the common commercial policy.150 However such a possibility cannot be used for an international agreement solely focusing on social security coordination. For that type of agreement, only the combination of Article 153 tfeu with 216 tfeu could be used.

1 47 Articles 13(3) to 13(5) of the eusfta. 148 Opinion of Advocate General Sharpston in Opinion 2/​15 (eusfta), ECLI:EU:C:2016:992, para. 502. 149 Furthermore, in relation to Marrakesh Treaty, Advocate General Wahl considered that the objective of social protection is to be found in Article 151 tfeu for which Article 153 tfeu could be a potential legal basis. However, considering that the centre of gravity was to be found more in Article 19 tfeu than in Article 153 tfeu, Advocate General Wahl did not advise for the inclusion of Article 153 tfeu as an additional legal base to the Marrakesh Treaty to Facilitate Access to Published Works for Persons Who are Blind, Visually Impaired or Otherwise Print Disabled. The Court did not discuss Article 153 tfeu in its Opinion. Opinion of Advocate General Wahl in Opinion 3/​15 (Marrakesh Treaty), ECLI:EU:C:2016:657, paras. 98–​105. Opinion 3/​15 Marrakesh Treaty, ECLI:EU:C:2017:114. 150 Opinion 2/​15 EU-​Singapore Free Trade Agreement, ECLI:EU:C:2017:376, paras. 142–​152.

EU Agreements as a First ‘Solution’ to Develop a Common EU

273

Nonetheless, keeping in mind that the role of the EU under Article 153 tfeu is to coordinate the policies of the Member States,151 it is believed that concluding an EU agreement on social security coordination with a third country would go beyond the role of coordinating the policies of the Member States. In fact, the EU agreement would have the effect of replacing the Member States’ bilateral agreements with third countries. Furthermore, Article 153(4) tfeu states that provisions adopted pursuant to Article 153 tfeu ‘shall not affect the right of Member States to define the fundamental principles of their social security systems and must not significantly affect the financial equilibrium thereof’. If an EU agreement on social security coordination with third countries was based on Article 153 tfeu, it is probable that the Member States would raise this card in order to say that their finances are endangered by the provision on export of benefits for example. As a result, it is doubted whether Article 153 tfeu could fit the purpose and content of EU agreements on social security coordination with third countries. 3.5 Article 352 tfeu: the ‘Flexibility Clause’ to the Rescue If none of the legal bases considered above would work, can an EU agreement on social security coordination with third countries still be concluded under Article 352 tfeu? Article 352 tfeu is the so-​called ‘flexibility clause’ as it allows for the Union to act ‘within the framework of the Treaties, to attain one of the objectives set out in the Treaties, and the Treaties have not provided the necessary powers’152 and such a possibility to act is not provided anywhere else in the Treaties.153 However, Article 352 tfeu cannot be used for adopting a Union act in the field of cfsp.154 Additionally, the use of Article 352 tfeu cannot serve as a way to expand the competence of the Union beyond the framework provided in the Treaties.155 In that regard, Article 352(2) tfeu provides that the national parliaments’ attention to proposals based on Article 352 tfeu should be raised in 151 Article 153 tfeu provides for different nature of the competence. Article 153 tfeu overall on social policy is a coordinating competence (Article 5(3) tfeu) but the specific paragraph on social security and social protection is a shared competence (Article 4(2) (b) tfeu). R. Schütze, European Union Law (Cambridge University Press 2015) 819. 152 Article 352(1) tfeu. 153 Joined Cases C-​ 402/​ 05 P and C-​ 415/​ 05 P Kadi v Council and Commission, ECLI:EU:C:2008:461, para. 211. 154 Article 352 (4) tfeu and Declaration 41 on Article 352 of the Treaty on the Functioning of the European Union; Joined Cases C-​402/​05 P and C-​415/​05 P Kadi v Council and Commission, ECLI:EU:C:2008:461, paras.198–​201. 155 Declaration 42 on Article 352 of the Treaty on the Functioning of the European Union.

274 

Chapter 5

accordance with the subsidiarity principle. Finally, Article 352 tfeu cannot serve for adopting measures that entail harmonisation of Member States’ laws where the Treaties exclude such harmonisation.156 The procedure for adopting a measure based on Article 352 tfeu is the unanimity procedure with consent of the European Parliament.157 Article 352 tfeu, or its predecessors Article 235 eec and Article 308 EC, have been used before in the adoption of EU measures dealing with social security such as Directive 79/​7158 and Regulation 883/​2004.159 In addition, Article 352 tfeu has been used before in the external relations context.160 Concerning the adoption of EU agreements with third countries on social security coordination, Article 352 tfeu could only be used if it is necessary to attain one of the objectives provided in the Treaties and no other provision is available to attain that objective. It could be argued that such EU agreements would attain the objectives of combatting social exclusion and discrimination and promoting social protection; objectives listed within Article 3(3) second sentence teu. However, it could be argued that Article 352 tfeu is used to expand EU competence. From a political perspective, due to the fact that Article 352 tfeu requires the proposal to be brought to the attention of national Parliaments and unanimity voting in the Council, it is difficult to conceive the adoption of EU agreements with third countries on social security coordination on the basis of Article 352 tfeu.161 3.6 Enhanced Cooperation as a Last Resort Solution The framework for enhanced cooperation, which was also called ‘closer cooperation’, was first enshrined by the Treaty of Amsterdam. However, it was

1 56 Article 352(3) tfeu. 157 Article 352(1) tfeu. 158 Council Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, [1979] OJ L 6/​24. 159 Article 308 EC then was used in order to adopt measures in Regulation 883/​2004 relating to non-​economically active persons. See Recital 2 of the Preamble of Regulation 883/​ 2004. 160 For example, Council Regulation (eec) No 348/​81 of 20 January 1981 on common rules for imports of whales or other cetacean products, [1981] OJ L 39/​1. 161 Based on the failure of the Monti ii Regulation which was proposed under Article 352 tfeu and was stopped after 12 yellow card by national parliaments, C.  Barnard and G.  de Baere consider that it would be very unlikely to have any EU measure on social policy adopted under Article 352 tfeu in the future. C. Barnard & G. de Baere, Towards a European Social Union. Achievements and Possibilities under the Current EU Constitutional Framework (KULeuven EuroForum 2014) 18.

EU Agreements as a First ‘Solution’ to Develop a Common EU

275

not until the entry into force of the Lisbon Treaty162 and the refining of the framework that it was first used in the context of the Rome iii Regulation on the law applicable to divorce and legal separation.163 The concept of enhanced cooperation is now contained in Article 20 teu and in Articles 326–​334 tfeu. Until today, the option of enhanced cooperation has been used in the context of the Rome iii Regulation, the European Unitary Patent,164 the Financial Transaction Tax (ftt),165 the European Public Prosecutor’s Office (eppo)166 and matrimonial property regime.167 The proposal on financial transaction tax is the only enhanced cooperation project that is still under negotiation. As a measure of last resort, at least nine Member States can establish enhanced cooperation within the framework of the Union’s non-​exclusive competences. The Member States can make use of the Union’s institutions and exercise the Union’s non-​exclusive competences by applying relevant Treaty provisions.168 It is argued that the framework for enhanced cooperation would not work for the adoption of EU agreements on social security coordination with third countries for three reasons. 162 For a general discussion of the changes of the framework for enhanced cooperation through the Treaty amendments, see M. Dougan, ‘The Unfinished Business of Enhanced Cooperation:  Some Institutional Questions and Their Constitutional Implications’, in A. Ott & E. Vos (Eds.), Fifty Years of European Integration: Foundations and Perspectives (T.M.C. Asser Press 2009)  157–​180; F.  Amtenbrink & D.  Kochenov, ‘Towards a More Flexible Approach to Enhanced Cooperation’, in A.  Ott & E.  Vos (Eds.), Fifty Years of European Integration: Foundations and Perspectives (t.m.c. Asser Press 2009) 181–​200. 163 Council Regulation 2010/​1259/​EU of 20 Dec. 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/​2; For a comment on the use of the enhanced cooperation in the context of that Regulation, See S. Peers, ‘Divorce, European Style: The First Authorization of Enhanced Cooperation’ 6 European Constitutional Law Review (2010) 339–​358. 164 Regulation (EU) No 1257/​2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, [2012] OJ L361/​1; Council Regulation (EU) No 1260/​2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, [2012] OJ L361/​89. 165 Proposal for a Council Directive implementing enhanced cooperation in the area of financial transaction tax, COM/​2013/​071/​final. 166 Council Regulation (EU) 2017/​1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the EPPO’), [2017] OJ L283/​1. 167 Council Regulation (EU) 2016/​1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, [2016] OJ L183. 168 Article 20(1) and (2) teu.

276 

Chapter 5

Firstly, an act adopted under the framework of enhanced cooperation still needs to contain another Treaty provision as its legal basis. Indeed, enhanced cooperation is only possible in areas where the Union itself is competent to act.169 It has been concluded in the previous pages that neither Article 48 tfeu, nor Article 79(2)(b) tfeu, nor the combination of the two, would be appropriate legal bases. Furthermore, it was concluded that the use of Article 352 tfeu would be difficult politically. The only potential legal bases could then be Article 153 tfeu in combination with Article 216 tfeu but, as it was concluded before, such a combination will be unlikely for the purpose of concluding an EU social security coordination agreement with a third country. As a result, since there is no legal basis possible for this type of EU act, enhanced cooperation would not be possible. Secondly, the stage of ‘last resort’ has not yet been achieved when it comes to EU social security coordination with third countries. The meaning of ‘last resort’ has been explained by the Court of Justice in the Unitary Patent Court case.170 According to the Court, enhanced cooperation should be used when it is impossible to adopt legislation in the Council in the foreseeable future.171 The impossibility can be due to many factors such as the ‘lack of interest on the part of one or more Member States or the inability of the Member States, who have all shown themselves interested in the adoption of an arrangement at Union level, to reach agreement on the content of that arrangement’.172 Ultimately, it would be up to the Council to determine whether the stage of last resort is reached or not.173 Indeed, in accordance with Article 20(2) teu and Article 329 tfeu, the Council should authorise the start of an enhanced cooperation. Until now, the Commission has only issued a communication on the External Dimension of EU Social Security Coordination in 2012.174 This communication has not been followed by any concrete legislative proposal. Therefore, it is difficult to conceive this situation as being at the stage of last resort. Thirdly, the idea itself of enhanced cooperation should not be advocated in order to pursue a common EU approach to social security coordination with third countries. Having an enhanced cooperation in that field will add another layer of legislation on that issue. As Chapters 2, 3 and 4 of this research have

1 69 170 171 172 173 174

Case C-​370/​12 Pringle, ECLI:EU:C:2012:756, para.167. Joined Case C-​274/​11 & C-​275/​11 Spain and Italy v Council, ECLI:EU:C:2013:240. Joined Case C-​274/​11 & C-​275/​11 Spain and Italy v Council, ECLI:EU:C:2013:240, para.50. Joined Case C-​274/​11 & C-​275/​11 Spain and Italy v Council, ECLI:EU:C:2013:240, para.36. Joined Case C-​274/​11 & C-​275/​11 Spain and Italy v Council, ECLI:EU:C:2013:240, para.53. European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final.

EU Agreements as a First ‘Solution’ to Develop a Common EU

277

shown, there is already a patchwork of legislation dealing with social security coordination for third-​country nationals. The purpose of achieving a common EU approach in that field is to simplify the current situation, not to add another layer of legislation. For those reasons, enhanced cooperation does not seem to be the adequate form for achieving a common EU approach on social security coordination with third countries. 4

Conclusion

Based on Chapters 2 and 3 that highlighted the current fragmented approach to social security coordination with third countries, this Chapter has proposed a first solution to develop a common EU approach in that field. This Chapter has built on the two options proposed by the European Commission in its 2012 Communication. The first option was to include social security provisions in EU Association Agreements with third countries, whereas the second option was to conclude EU agreements on social security coordination with third countries. In both options proposed, the idea is to have EU agreements instead of Member States’ agreements. This Chapter has started by recalling that the EU has a general mandate to conclude agreements with third countries in Article 216 tfeu. Pursuant to Article 216 tfeu, The EU has the competence to conclude agreements with third countries in four instances: (1) when the Treaty so provides; (2) where the conclusion of an agreement is necessary in order to achieve the Union’ policies or objectives referred to in the Treaties; (3) where the conclusion of an agreement is provided for in a legally binding Union act; (4) where the conclusion of an agreement is likely to affect common rules or alter their scope. From Article 216 tfeu, it is clear that either the Treaties need to provide explicitly for the EU to act or the Treaties need to provide it implicitly. Either way, there is the need to refer to other Treaty articles than Article 216 tfeu in order to legally envisage an EU agreement with third countries. Keeping in mind the importance of finding the appropriate legal base(s), this Chapter explored the two options put forward by the European Commission. Firstly, the option of having EU agreements with third countries that would include social security provisions has been discussed. The discussion has been centred around the feasibility and desirability of including social security coordination provisions in EU agreements (Association Agreements, pca s or fta s) as a way to develop a common EU approach. It has been shown that it would be legally feasibility in the sense that the legal bases of Article 217 tfeu, 209 tfeu, 212 tfeu and 207 tfeu respectively would not preclude the

278 

Chapter 5

inclusion of social security coordination provisions. However, such an option would not be desirable, as the end result would be that the social security provisions would merely provide for political commitments to conclude further measures. Hence, compared to the already existing bilateral agreements concluded by the Member States with third countries that are directly effective, the EU agreements would not constitute an added value. Secondly, the option of concluding EU agreements exclusively on social security coordination with third countries was explored. Under that option, the legal bases of Article 48tfeu and Article 79(2)(b) tfeu have been discussed. Article 48 tfeu would not fit the part of the EU agreement concerning the situation of third-​country nationals. Conversely, Article 79(2)(b) tfeu would not permit the cover of situations of EU citizens in third countries. The combination of both articles in order to reflect both aspects would seem legally feasible except for the fact that Article 48 tfeu is not considered to be a provision that can be used externally. While Article 48 tfeu could be used to reflect the aspect of EU citizens within the EU, it could not be used for covering the situations of EU citizens in third countries. Furthermore, Article 153 tfeu was also not considered as an appropriate legal basis as it was argued that concluding EU agreements on social security coordination with third countries would go beyond the spirit of Article 153 which is concerned with supporting and complementing the policies of the Member States. Considering that none of the legal bases fit the proposal of an EU agreement on social security coordination with third countries, the options of flexibility through Article 352 tfeu or the option of enhanced cooperation would not work. Hence, from a legal perspective, the option of concluding EU agreements on social security coordination with third countries is doubtful.

­c hapter 6

An EU Model Agreement as a Second ‘Solution’ to Develop a Common Approach to Social Security Coordination with Third Countries The analyses conducted in Chapter 2 and Chapter 3 have shown that there are inconsistencies between the EU approach and the national approaches to social security coordination with third countries. It has also been demonstrated that within the EU approach and within the national approaches, there are differences between the social security coordination rules. The conclusion of the analysis of the different approaches is that a common EU approach to social security coordination would be beneficial for third-​country nationals coming to the EU as well as for EU citizens going to third countries. The previous Chapter considered the idea of having EU agreements with third countries on social security coordination. The positive aspect of EU agreements is that there would be only one agreement per third country. Therefore, the inconsistencies between the national approaches and the EU approach would be solved. However, the previous Chapter ended with the conclusion that such EU agreements on social security coordination with third countries would be legally difficult to achieve due to the lack of an explicit legal basis. Pursuing a common EU approach is not necessarily restricted to the conclusion of an EU agreement. In this Chapter, another policy option is explored. This alternative option concerns the draft of an EU model agreement on social security coordination. The idea of developing a model agreement was briefly suggested by B. Spiegel in his report to the European Commission in 2010.1 Additionally, there are already existing model agreements on social security coordination. There is a model agreement of the Council of Europe2 as well as ilo Convention No. 157 concerning the Establishment for an International Scheme for the Maintenance of Social Security3 and Recommendation No. 167 on the Maintenance of Social 1 B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 66. 2 Council of Europe, Model Provisions For a Bilateral Social Security Agreement and Explanatory Report, SS-​AC (98) 6. 3 ilo Convention concerning the Establishment of an International Scheme for the Maintenance of Social Security, No. 157, 21 June 1982.

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_007

280 

Chapter 6

Security Rights.4 The Council of Europe model agreement is a draft model agreement whereby the Contracting States would only need to fill in the relevant information. Furthermore, for each provision, it provides several alternatives that permit the model agreement to be adapted by the Contracting States. The ilo Convention No. 157 and the Recommendation No. 167 function differently in the sense that they provide for minimum standards that need to be included in further multilateral or bilateral agreements. They are not draft agreements like the Council of Europe model agreement. Overall, these model agreements did not have a big impact on the States’ practices concerning bilateral agreements on social security coordination. The only exception, as explained by B. Spiegel, is the case of Austria which followed the model agreement from the Council of Europe. The reason for that compliance was that the model agreement was drafted under the strong influence of the Austrian delegation.5 Then the legitimate question is: Would an EU model agreement have more impact on the Member States’ practices than the already existing models developed by the Council of Europe or by the ilo? In fact, there is no certainty that an EU model agreement would be better accepted by the Member States and better followed than a model developed by the Council of Europe or by the ilo. However, there are some elements that could influence the Member States in choosing to follow a future EU model in order to achieve a common EU approach to social security coordination. Those elements are: the fact that the model agreement would be relevant for both the Member States and the EU institutions; the optional character of the model agreement; the flexibility of the model agreement; and the authority of the experts who could draft the model agreement. Those elements are explained in Section 1. Section 2 is dedicated to a discussion on what provisions could be included in an EU model agreement. 1

Institutional Considerations

An EU Model Agreement for the Member States and for the EU Institutions Based on the analysis of the EU approach in Chapter 2 and the national approaches in Chapter 3, an EU model agreement could be useful for both the EU 1.1

4 ilo Recommendation concerning the Establishment of an International System for the Maintenance of Rights in Social Security, No. 167, 20 June 1983. 5 B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 66.

An EU Model Agreement as a Second ‘Solution’

281

institutions and the Member States when they conclude bilateral agreements with third countries. Chapter 2 on the EU legal framework on social security coordination with third countries showed that there are many inconsistencies in the current EU approach. The EU agreements with third countries such as the EU-​Turkey Association Agreement (and its Decision 3/​80) or the pca with Russia contain very different set of rules on social security coordination. The comparison of the EU agreements with third countries allowed the classification of the agreements with third countries into three categories: (1) EU agreement with third countries that are to be considered as Member States of the EU for the purpose of social security coordination; (2) EU agreements with third countries that include provisions on social security coordination having direct effect; (3) EU agreements with third countries that only include political commitments to further adopt measures on social security coordination. Within those categories, the provisions on social security coordination still differ. An EU model agreement could be useful for categories 2 and 3. Indeed, with third countries that are to be considered as Member States, the rules on social security coordination are already consistent since they use the rules enshrined in Regulation 883/​2004 and Regulation 987/​2009. However, for agreements of categories 2 and 3, following an EU model agreement could ensure a common approach to social security coordination. It is not suggested having the exact same approach for the agreements of categories 2 and 3 as it might be desirable to further coordinate with some third countries and only call for future coordination with others. However, all agreements of category 2 and all agreements of category 3 could benefit from a more consistent approach. To give an example, with third countries with whom only political commitment is included, the EU model agreement could require that the political commitment should be that all the fundamental elements of social security coordination (i.e. equal treatment, aggregation of periods of insurance, determination of the law applicable, export of benefits and administrative cooperation) are included in future measures to be adopted by the Contracting Parties. As a specific example, the provisions on social security coordination of the EU-​Tunisia emaa still need to be implemented. When the time for implementation comes, the Council could adopt the content of the EU model agreement in its Decision on the position to be taken on behalf of the EU in the EU-​Tunisia Council. Finally, an EU model agreement could also be useful for the Member States when they conclude bilateral agreements with third countries. The EU model agreement would serve as a mandate for the negotiation and conclusion of future Member States’ bilateral agreements.

282 

Chapter 6

1.1.1

The Relevance of an EU Model Agreement for the EU Migration Directives The relevance of an EU model agreement for the EU migration Directives needs to be addressed as it is not self-​evident. Indeed, EU migration Directives are not agreements with third countries but unilateral measures taken by the EU on the residence status of third-​country nationals in the EU. Therefore, the rationale of the EU migration Directives differs from the rationale of concluding EU agreements with third countries. In that regard, the principle of reciprocity which applies to bilateral agreements cannot apply to the EU migration Directives. Despite having different rationales, the EU migration Directives suffer from the same problems as the EU agreements with third countries when it comes to social security coordination. Their main problem is the lack of consistency in the social security coordination standards they provide. The EU migration Directives contain an equal treatment provision but they differ largely in the type of benefits that can be excluded from equal treatment by the Member States during their implementation of the Directives. Furthermore, the Blue Card Directive, the Single Permit Directive, the Seasonal Workers Directive, and the Intra-​Corporate Directive provide for equal treatment in the export of statutory pensions6 whereas the other EU Directives do not provide for equal treatment with regard to export. Given the inconsistencies in the current EU approach, an EU model agreement could be used by the EU institutions when they adopt or revise EU migration Directives.7 Since 2016, the European Parliament has called for a holistic approach to EU migration and criticised the current fragmented approach to legal migration where the focus is on certain categories of workers.8 Even though having a single instrument on legal migration would be the preferred option in order to ensure consistency in the equal treatment provisions for all third-​country nationals coming from a third country to the EU, such an option seems currently highly improbable.9 A more 6 Albeit the Blue Card Directive refers to old-​age statutory pension; the Single Permit Directive and the Intra-​Corporate Transfer Directive refer to old-​age, survivors, and invalidity statutory pensions; the Seasonal Workers Directive simply mentions the term ‘pensions’. 7 For example, the Blue Card Directive is currently under revision. Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of highly skilled employment, [2016] COM (2016) 378 final. 8 European Parliament, ‘Resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration’, INI/​2015/​2095. 9 In 2001, the original idea of the European Commission was to have a uniform instrument on the conditions of entry and residence of all third-​country nationals. This proposal failed in

An EU Model Agreement as a Second ‘Solution’

283

realistic approach would be to achieve consistency through the revision of the different EU Directives. Thus, every time an EU Directive is revised, the European Commission could ensure that the provision on equal treatment contained in the EU model agreement is included. Therefore, an EU model agreement on social security coordination would not be relevant in its entirety for the EU migration Directives. The equal treatment provision of an EU model agreement would however be useful for the revision on the equal treatment provisions of the EU migration Directives. The Optional Character of an EU Model Agreement on Social Security Coordination with Third Countries The draft of an EU model agreement formalises the standards and principles to be respected by both the EU institutions when they adopt new or revised legislation as well as by the Member States when they conclude bilateral agreements with third countries. However, this formalisation should not be equated with a legal obligation to follow that EU model agreement. It has been ­explained, through the analysis of the first policy option and the conclusion of an agreement by the EU itself, that there are difficulties in finding a legal basis for an EU legal act. Instead, the option of an EU model agreement rests on the idea of cooperation between the Member States and the EU institutions. In order to be accepted, an EU model agreement should stay a model agreement for which participation, and compliance are voluntary. Hence, if there is the idea to develop an EU model agreement, this model agreement should not be binding upon the Member States. Then, the European Commission would not be able to enforce that model agreement upon the Member States through Article 258 tfeu. 1.2

One Model Agreement Fitting All Third Countries or One Model Agreement Per Third Country? In drafting a model agreement on social security coordination with third countries, a choice must be made as to whether that agreement would be drafted in terms of vague standards fitting all third countries or whether it would be more tailor-​made to particular third countries, or something in between. In other words, it needs to be considered whether there would be a general model agreement or different model agreements for separate third countries. 1.3

the Council and was withdrawn in 2006. Proposal for a Council Directive on the conditions of entry and residence for the purpose of paid employment and self-​employment activities, [2001] COM (2001) 0386 final. European Commission, ‘Withdrawal of Commission proposals following screening for their general relevance, their impact on competitiveness and other aspects’, [2006] OJ C64/​3. For a more detailed discussion on this, see Chapter 2, pp.100–​101.

284 

Chapter 6

First of all, the second option of having different model agreements for different third countries seem attractive in the sense that it addresses the reality that third countries cannot be considered as one entity. They have different relationships with the Member States and with the EU. For example, social security coordination between the EU and Turkey would not be the same as social security coordination between the EU and usa. This can be explained by the fact that there is already an Association Agreement between the EU and Turkey providing for the basis for social security coordination whereas such a framework does not exist with regard to the usa. Also, the different third countries do not all have the same level of development of their social security systems. However, having a model agreement per third country is perhaps an inefficient way of ensuring a common EU approach. It is costly and time consuming to prepare several model agreements that the Member States or the EU institutions might not wish to follow. On the contrary, having a one fit-​all type of model agreement misses any practical relevance as it would not fit the political and legal obstacles found in the different social security systems. As a result, there is a need for something in the middle. An EU model agreement would need to provide general standards and structure to be followed while still allowing adaptation of the details to the particular social security systems. In that sense, it resembles the practices of the model conventions in the field of double taxation which have been proven successful followed by the States when concluding bilateral agreements on Double Taxation.10 There are two major models of tax treaties:  the UN model and the oecd model. They both present the characteristics of providing for general structure and general principles with many optional clauses where the States can adapt the model to their realities.11 It would also resemble the social security model agreement drafted by the Council of Europe which contains a draft agreement to be filled in with the elements of the different countries. The model agreement from the Council of Europe also includes an alternative to each provision. Compared to the model agreement from the Council of Europe,

10 11

For a detailed analysis of the impact of the oecd model convention, see M. Lang, P. Pistone, J.  Schuch & C.  Staringer (Eds.), The Impact of the OECD and UN Model Conventions on Bilateral Tax Treaties (Cambridge University Press 2012). There are two major model tax treaties:  UN model and the oecd model. For a comment on the oecd model conventions, see M.  Lang, Introduction to the Law of Double Taxation Conventions (Second Revised Edition, Linde and ibfd 2013) and more particularly Chapters 2 and 4; for a comment on the UN model, see V. Daurer, Tax Treaties and Developing Countries (Kluwer Law International 2014).

An EU Model Agreement as a Second ‘Solution’

285

the EU model agreement proposed in this research would not systematically include alternatives. The proposed EU model agreement would entail a structure and general principles being mandatory, as well as some optional clauses in order to allow the Member States to adapt the model to their needs and realities. In addition, the use of optional clauses would also permit them to take due account of the legal obstacles in the third countries. This element of flexibility through the use of optional clauses is important because agreements on social security coordination are based on the principle of reciprocity. According to that principle, agreements coordinate elements and branches of social security that are present in the social security system of the Contracting Parties. For example, the Indian social security system does not cover self-​employed persons. Therefore, in concluding an agreement with India on social security coordination, the Member States cannot ask India to include in the agreement rules on the situation of self-​employed persons in India. As a result, an EU model agreement should be flexible enough in order to be adaptable to such a scenario. The Working Group on the International Dimension of Social Security Coordination as the Target Group for This EU Model Agreement The institutional context of the draft of an EU model agreement would be determinant for its success. First, there is the possibility of having the European Commission taking the lead in proposing an EU model agreement in the same manner as it proposed the European Pillar of Social Rights through an interinstitutional proclamation in April 2017.12 However, such a top-​down approach is not the one preferred in this research. Instead, a bottom-​up approach with the Member States taking the lead is advocated. B. Spiegel has highlighted in his report that the reason why Austria followed the model agreement of the Council of Europe in its future bilateral agreements was that an Austrian expert was leading the draft of the model agreement of the Council of Europe. That same Austrian expert was then the person in charge for the conclusion of the bilateral agreements between Austria and third countries.13 This example is of course illustrative and is not meant to represent the overall practice of the Member States. However, it can be assumed 1.4

12 13

Proposal for a Interinstitutional Proclamation on the European Pillar of Social Rights, [2017] COM (2017) 251 final. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 66.

286 

Chapter 6

that the more important the role of the Member States have in the drafting of an EU model agreement, the more likely they would be to follow it in the conclusion of future bilateral agreements. Consequently, if an EU model agreement is drafted, it should be drafted by the Member States, in collaboration with the European Commission. There is already a working group on the international dimension of social security coordination within the framework of the Administrative Commission.14 It meets annually in the context of one of the meetings of the Administrative Commission for the Coordination of Social Security Systems (hereinafter ‘the Administrative Commission’).15 The Administrative Commission is a body attached to the European Commission and was set up in the context of Regulation 883/​2004.16 It is composed of a representative of the government of each Member State, who can be assisted by experts if necessary, as well as a representative of the European Commission who has an advisory role.17 The European Commission also exercises the role of Secretariat of the Administrative Commission.18 The tasks of the Administrative Commission are set out in Article 72 of Regulation 883/​2004. Among its tasks, there is the facilitation of the uniform application of Community law, especially by promoting the exchange of experience and best administrative practices, as well as fostering and developing cooperation between the Member States and their institutions in social security matters.19 Concerning the working group on the international dimension of social security coordination, its composition is the same as the Administrative Commission, i.e. a representative of the government of each Member State and a representative of the European Commission. In practice, the representative of the government of each Member States is in fact a person from the national 14

15 16 17 18 19

The existence of this forum is not publicly advertised but was revealed during interviews conducted by the author of this paper with Member States’ representatives present in the forum on the international dimension of social security coordination within the Administrative Commission Three interviews were conducted with different Member State’s representatives. Due to political reasons, their identity cannot be disclosed. That being said, the existence of such a forum can be further proven by the draft agenda on the 333rd meeting of the Administrative Commission. See European Commission, ‘Draft Agenda of the 333rd meeting of the Administrative Commission’, [2012] AC 475/​12. The Administrative Commission meets at least four times per year and within one of those meetings, the working group on the international dimension of social security coordination meets, usually in October. Article 72 of Regulation 883/​2004. Article 71(1) of Regulation 883/​2004. The tasks of the Administrative Commission are further defined in Article 72 of Regulation 833/​2004. Article 72(b) and (c) of Regulation 883/​2004.

An EU Model Agreement as a Second ‘Solution’

287

Ministry department20 in charge of concluding bilateral agreements on social security with third countries. The working group on the international dimension of social security coordination has two main aims: (1) discussing the Member States’ best practices in concluding bilateral agreements with third countries, and (2)  defining the Member States’ positions with regard to the inclusion of social security provisions in the conclusion of future Association Agreements or in the implementation of Association Agreement. As regards the first aim, the discussion mainly serves as a way to strengthen the Member States negotiating positions with regard to specific third countries. Hence, the idea is to learn from each other’s experiences without the aim of achieving a common EU approach in their conclusion of bilateral agreements with third countries. The second aim is in fact a bottom-​up approach where the Member States prepare together a draft of the future social security clauses to be added to future Association Agreements or in the implementation of Association Agreement. This bottom-​up approach can be justified due to the composition of this working group. It is composed of persons working daily on social security bilateral agreements with third countries in the national Ministries. As the working group on the international dimension of social security coordination includes all the relevant experts in the field, the draft of an EU model agreements should be entrusted to that working group. In that context, the question remains about the place of the EU in the drafting of an EU model agreement. The European Commission is present in that working group as an advisor and can help the Member States to strive for more coherency by bringing a supranational dimension to the debate. In addition, as it was pointed out in Chapter 2, there is a fragmented approach to social security coordination among the EU legislation. Hence, if an EU model agreement is drafted within the framework of the Administrative Commission, it should be thought of in the context of a common approach also within the EU legislation. To a certain extent, the working group on the international dimension of social security coordination already pursues such an approach as it drafted social security provisions to be included in future Association Agreements.21 1.5 The Legal Basis for an EU Model Agreement Finally, the legal basis, or perhaps the need for a legal basis, for an EU model agreement must be addressed. Firstly, it can be said that, given its proposed 20

For example, in the case of Belgium, it is the Ministry of Foreign Affairs who concludes the bilateral agreements on social security with third countries. 21 Administrative Commission, ‘Main conclusions of the 348th meeting of the Administrative Commission’, [2016] AC 608/​16.

288 

Chapter 6

optional character, the form of EU legal acts such as Directives or Regulations are excluded for an EU model agreement. As proposed, an EU model agreement would be a non-​binding instrument. However, it is not intended to discuss the exact institutional form that an EU model agreement would take, i.e. recommendation, white paper, etc. Instead of specifying its institutional form, two types of scenario are envisaged for the adoption of an EU model agreement. As stated before, it is recommended that the draft of an EU model agreement is made by the working group on the international dimension of EU social security coordination within the Administrative Commission. Therefore, an EU model agreement could be adopted by the representatives of the Member States present in this working group. In that context, it is doubted whether there would be a need for a legal basis from the Treaties as the EU model agreement would be an inter-​ governmental instrument rather than an EU instrument. The other scenario would concern the adoption of an EU model agreement by the European Commission. The European Commission which holds the Secretariat of the Administrative Commission could adopt the model agreement after the discussion in the working group. In that second scenario, given the involvement of the European Commission and keeping in mind the principle of conferral, the adoption of the EU model agreement would need a justification in the Treaties. In that regard, Article 3 teu states that one of the aims of the Union is to combat social exclusion and discrimination, promote social justice and protection, equality between women and men, solidarity between generations and protection of the rights of the child. Article 9 tfeu provides that the Union should take into account requirements linked to the guarantee of adequate social protection when defining and implementing its activities. Article 151 tfeu requires that the Union and the Member States have the objective of providing proper social protection. Furthermore, Article 153 tfeu permits the Union to support and complement the activities of the Member States in the field of social security and social protection.22 The promotion of proper social protection does not necessarily only concern the proper social protection of nationals of the Member States but can also concern the social protection of third-​country nationals.23 Article 153(2) tfeu requires unanimity to be reached in the Council in the field of social security and social protection 22 23

Article 153(1)(c) tfeu. In the Tümer case, the Court of Justice held that Article 136 EC, now Article 151 tfeu, which list the objective of improving the living and working conditions did not only concern the living and working conditions of nationals of Member States but also those of third-​country nationals. See Case C-​311/​13 Tümer, ECLI:EU:C:2014:2337, para.32.

An EU Model Agreement as a Second ‘Solution’

289

of workers. In that field, the special legislative procedure is required with the consultation of the European Parliament and of the European Economic and Social Committee and the Committee of Regions.24, 25 However, the exact procedure to follow will depend on the institutional form the EU model agreement would take. If it is a Commission Recommendation, it seems that the legal basis of Article 292 tfeu would be sufficient and would not require another additional legal basis.26 However, recourse to a recommendation is not a carte blanche to be used by the European Commission in any policy area and it would need to refer, for example in its Preamble, to particular policy areas contained in the Treaties.27 2

The Content of an EU Model Agreement on Social Security Coordination with Third Countries

This Section discusses the content of an EU model agreement on social security coordination with third countries. The content proposed in this Section is developed based on the comparative legal analysis conducted in Chapter 3 on the different bilateral agreements of the Member States, but also based on the analysis from Chapter 2 of the EU legislation. Additionally, the international instruments discussed in Chapter 4 serve as inspiration for the content of an EU model agreement. 2.1 Personal Scope Before discussing the potential personal scope of an EU model agreement, it is essential to include some definitions in an EU model agreement. As for any agreement that coordinates several legal systems, it is important to make clear 24 25

26 27

Article 153 (2) tfeu provides that ‘in the fields referred to in paragraph 1(c), (d), (f) and (g), the Council shall act unanimously, in accordance with a special legislative procedure, after consulting the European Parliament and the said Committees’. In that regard, it should be noted that both the European Parliament and the European Economic and Social Committee are strong supporters of developing a common EU approach to social security coordination. See European Parliament, ‘Resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration’, INI/​2015/​2095; European Economic and Social Committee, ‘Coordination of social security schemes between the European Union and Euromed countries. Study’ (European Union 2016). For example, European Commission, ‘An Agenda for Adequate, Safe and Sustainable Pensions’ COM (2012) 55 final). B. De Witte, ‘The Place of OMC in the System of EU Competences and Sources of Law’ European Papers (2018).

290 

Chapter 6

what is meant by, for example, ‘family members’. The definitions found in Article 1 of Regulation 883/​2004, and used also in the context of Regulation 1231/​2010, could serve as a basis for the definitions for a model agreement. In any case, a provision listing definitions would come prior to a provision on personal scope. Concerning the personal scope, an EU model agreement would be drafted in compliance with the Gottardo judgment of the Court of Justice.28 As already explained in Chapter  2, this judgment entails that any Member State must treat all EU citizens equally to its own nationals while applying a bilateral agreement on social security which it concluded with a third country. Following the Gottardo judgment, the Administrative Commission on Social Security Coordination has issued a Recommendation.29 One of the recommendations is that new agreements should make explicit reference to the principle of non-​discrimination on the grounds of nationality against nationals of another Member State who have exercised their right of free movement in the Member State which is a party to the agreement concerned.30 However, such an explicit reference to the principle of non-​discrimination is not necessary if the model agreement advocates an ‘open’ personal scope. An ‘open’ personal scope implies that the agreement applies to any person who is subject to the social security legislation of one of the Contracting States. Hence, in ‘open’ agreements, the personal scope is not restricted to the nationality of the person but rather applies to any person subject to the social security legislation. The opposite of ‘open’ agreements is ‘closed’ agreements which refers to the fact that the personal scope is based solely on nationality requirement.31 In the context of ‘closed’ agreements, it is indeed important to include an explicit reference to the principle of non-​discrimination in the light of the Gottardo judgment. However, it would be sufficient that the EU model agreement promotes a personal scope based on insurance requirements rather than on nationality requirements.32 If such an ‘open’ personal scope is 28 29

30 31 32

Case C-​55/​00 Elide Gottardo v.  Istituto nazionale della previdenza sociale (INPS), ECLI:EU:C:2002:16. Administrative Commission, ‘Recommendation No 22 of 18 June 2003 concerning the Gottardo judgment, according to which the advantages enjoyed by a State’s own nationals under a bilateral convention on social security with a non-​member country must also be granted to workers who are nationals of other Member States’, [2003] OJ L 326/​35. Point 2 of Recommendation No 22. ‘Closed’ agreements can also apply to refugees and stateless persons as well as to persons who derive rights from the national to whom the agreements apply. Case C-​55/​00 Elide Gottardo v.  Istituto nazionale della previdenza sociale (INPS), ECLI:EU:C:2002:16; B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 30–​32.

An EU Model Agreement as a Second ‘Solution’

291

mandatory in an EU model agreement, there is no need to add a provision on non-​discrimination applicable to other EU citizens. Another mandatory element should be the coverage of both employed and self-​employed persons. An EU model agreement would mandatorily cover self-​ employed persons unless one of the Contracting States does not have a scheme covering self-​employed persons33 in which case the inclusion of self-​employed persons would be an optional element. As agreements on social security coordination are based on the reciprocity principle, it is important to taken into consideration the reality of the social security systems of the contracting partners. Rendering the inclusion of self-​employed persons mandatory in all cases would have the consequence that the EU model agreement might be ignored in relation to those countries who do not have schemes covering self-​employed. It is important to promote the inclusion of family members in the personal scope of an EU model agreement as the possibility of bringing family members and giving them access to social security is often indicated by migrant workers as a factor facilitating their mobility.34 While the possibility of bringing relatives would not be covered by an agreement dealing with social security coordination, their access to social security benefits could be covered by a bilateral agreement. Hence, as a mandatory clause, an EU model agreement would cover in its personal scope all family members and survivors deriving rights from persons who are or have been subject to the legislation of one of the Contracting parties. Finally, economically inactive persons could be included in the personal scope of an EU model agreement. However, this element would be optional. Some bilateral agreements explicitly referred to social security legislation restricted to employed and self-​employed persons, and therefore not covering economically inactive persons. For example, the Belgium-​India ssa covers old-​ age and survivors’ pension schemes for employed and self-​employed persons in Belgium, and for employed persons in India.35 As a result, it is advisable to include economically inactive persons in a model agreement as an optional element that States could choose to add in their bilateral agreements. To sum-​up, the mandatory personal scope provision of an EU model agreement would cover employed and self-​employed persons who are or have been subject to the Contracting parties’ legislation; their family members and 33 34 35

For example, India does not have a social security scheme covering self-​employed persons. In that regard, see, for example, D. Mukherjee & R. Chanda, ‘Investment and Migration linkages between India and the EU’, CARIM-​India Research Report (16, 2012) 21. Article 2(1)(a)(i) and (b)(i) of the India-​Belgium ssa.

292 

Chapter 6

survivors deriving rights from those persons. As optional elements, the personal scope could cover economically inactive persons. 2.2 Material Scope In terms of material scope, it can be said that an EU model agreement would most likely include at least statutory pension benefits (old-​age, survivor’s and invalidity pensions). First of all, the focus on statutory pension benefits as the sole mandatory material scope for a model agreement comes from a purely practical consideration. This research has shown that the current practice of the Member States bilateral agreements does not include all social security rights in their material scope. For example, in the case of India or in the case of the usa, the current practice of the Member States focuses greatly on statutory pension rights.36 In his 2010 report to the European Commission, B. Spiegel already recommended a focus on statutory pension rights as a first step to a common EU approach to social security coordination with third countries.37 The fact that an EU model agreement would refer to old-​age, invalidity and survivors’ pension benefits in its material scope would not necessarily restrict the Member States in adding other benefits to their bilateral agreements. However, it would ensure that there is a minimum basis of benefits covered. It should be noticed that by referring to benefits, i.e. old-​age, invalidity or survivors’ pension benefits in the material scope of an EU model agreement, would result in the detailed definition of those benefits varying in each national law. Regulation 883/​2004 follows that approach of referring to benefits and not to the specific legislation of each Member States.38 In an EU model agreement, references to benefits instead of specific legislation would permit some States to include occupational pension schemes39 that might be provided by national law. The possibility for States to include occupational pension schemes is important as there is a trend in the EU40 to shift from a strong statutory pension 36 37 38 39 40

Chapter 3, p.135–​136 (India) and p.150–​151 (usa). B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 23–​24. Article 3(1) of Regulation 883/​2004. Occupational pension schemes are pension schemes linked to an employment relationship. They top up statutory pension schemes. In the EU, coordination of occupational pension schemes (also referred as supplementary pension schemes) is regulated by Directive 98/​49/​EC and Directive 2014/​50/​EU. Council Directive 98/​49/​EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-​employed persons moving within the Community, [1998] OJ L 209/​46–​49; Directive 2014/​50/​EU of the European Parliament and of the Council of 16

An EU Model Agreement as a Second ‘Solution’

293

scheme to occupational pension schemes in order to respond to the ageing population and the demographic deficit.41 Then, the focus on pension benefits in the material scope of an EU model agreement does not mean that it would not be possible to include other social security benefits in the material scope as optional elements. The mandatory material scope on pension benefits would be applicable for all the provisions of the EU model agreement. With regard to other social security rights, the ilo recommendations advises that any bilateral agreement on social security should cover all social security rights:42 i.e. old-​age benefits, invalidity benefits, survivors’ benefits, employment injury benefits, sickness benefits, maternity benefits, medical care benefits, family benefits, and unemployment benefits.43 As already explained, the practices of the Member States bilateral agreements show that they do not wish to include all social security benefits.44 In addition to the findings from this research, missoc found that most bilateral agreements concluded by the Member States exclude unemployment benefits from their material scope.45 Furthermore, in the analysis of the EU migration Directives conducted in Chapter 2, it has been highlighted that the Single Permit Directive,46 the Students and Researchers Directive, the Seasonal Workers

41

42 43

44 45 46

April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights, [2014] OJ L 128/​1. K. Lannoo, M. Barslund, A. Chmelar & M. von Werder, ‘Pension Schemes: Study for the EMPL Committee’ (European Union 2014) 21–​22; D. Ghailani, I. Guardiancich, D. Natali, M. Ferrera & M. Jessoula, ‘Scope of the coordination system in the pension field’ (ose Report 2011) 9. ilo Convention concerning Minimum Standards of Social Security, No. 102, 28 June 1952; ilo Recommendation No.202 concerning National Floors of Social Protection, 14 June 2012. Regulation 883/​2004 provides a list of 10 social security benefits in Article 3(1): sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-​age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits, pre-​retirement benefits, and family benefits. Chapter 3, pp.142–​143, 157–​158 and 171–​174. missoc, MISSOC Analysis 2013/​2:  External Aspects of Social Security Coordination (2013) 26. It should be noted that the Single Permit Directive only permits the Member States when they implement the directive to exclude family benefits from the equal treatment provision for third-​country nationals who have been authorised to work in the territory of a Member State for a period not exceeding six months, for third-​country nationals who have been admitted for the purpose of study, or for third-​country nationals who are allowed to work on the basis of a visa (Article 12(2)(b) second sentence of the Single Permit Directive).

294 

Chapter 6

Directive, and the Intra-​Corporate Directive47 permit the Member States to exclude or limit family benefits from the equal treatment provisions of the Directives.48 Finally, the bilateral agreements analysed in this research do not mention special non-​contributory benefits.49 Under Regulation 883/​2004, special non-​contributory benefits are not exportable.50 Under an EU model agreement, it would probably be the same. In conclusion, the mandatory material scope of an EU model agreement would be restricted to pension benefits (invalidity, survivors’ and old-​age). That mandatory material scope would apply to all the other provisions of the EU model agreement. As an option, it would be possible to include other benefits. Furthermore, those other benefits could be restricted to only some provisions of the EU model agreement such as the provisions determining the law applicable. 2.3 Equal Treatment An equal treatment provision would also be included in an EU model agreement. That provision would entail equal treatment with regard to the application of the legislation in the Contracting State where they ordinarily reside. Hence, the equal treatment provision does not provide for equal treatment with regard to the export of benefits but simply with regard to the access of benefits in the Contracting State where the person resides. Above, under the material scope, it was proposed to concentrate on pension rights as being mandatory and to give the option of adding other benefits. For the specific provision of equal treatment which concerns access to the benefits in the Contracting State where the person resides, it could concern all nine branches of social security. This would correspond to the standards currently achieved by all EU migration Directives. However, as already explained, the Single Permit Directive, the Students and Researchers Directive, the Intra-​Corporate Directive as well as the Seasonal Workers Directive permit the Member States to restrict access to family benefits when they

47

48 49 50

It should be noted that the Intra-​Corporate Transfer Directive only permits the Member States when they implement the directive to exclude family benefits from equal treatment for those intra-​corporate transferees who have been authorised to reside and work in the territory of a Member State for a period not exceeding nine months (Article 18(3) of the Intra-​Corporate Transfer Directive). Chapter 2, pp. 103–​104. However, some bilateral agreements exclude non-​contributory benefits from their material scope, e.g.: the France-​India social security agreement. Article 70(4) of Regulation 883/​2004.

An EU Model Agreement as a Second ‘Solution’

295

implement those directives in their national law.51 In addition, the Seasonal Workers Directive allows the exclusion of unemployment benefits from the equal treatment provision.52 Hence, it is doubtful whether those benefits would be opted-​in on the basis of the EU model agreement. However, leaving open the inclusion of those benefits allows the Member States and the EU institutions to include them when following the EU model agreement, if they wish to. Finally, it is important to note that the equal treatment provision of an EU model agreement would mandatorily apply to family members who join the third-​country workers to reside in a Member State. The equal treatment provisions could however optionally apply to family members residing in a third country. The same should be true for EU citizens and their family members residing in a third country. Here, it is important to leave this as an option since the current trend in the Member States is to restrict the access of family benefits for children residing in third countries or at least to reduce the family benefits to the standards of living of the third country.53 2.4 Rules Determining the Law Applicable An EU model agreement would contain a general provision on the determination of the law applicable as well as specific provisions targeting specific type of contracts. The general provision on determining the law applicable would provide for the application of the lex loci laboris. Hence, the general rule would be that the law applicable is the law of the country where the employed or self-​employed person carries on his activities. Next to that general provision, there would be specific rules for workers employed in particular working situations; i.e. members of the travelling or flying personnel, seamen, members of diplomatic missions and posted workers. For members of the travelling or flying personnel, the comparative legal analysis conducted in Chapter 2 shows that there is a consensus that the law applicable should be the law of the place where the enterprise has its registered office.54 Similarly, for civil servants, diplomatic and consular staffs, it seems that the

51 52 53

54

Chapter 2, pp. 103–​104. Chapter 2, pp. 113–​115. In that regard, the example of the renegotiation of the Dutch-​Morocco bilateral agreement can be given as an example of that trend. As from the beginning of 2021, the Dutch family benefits for children residing in Morocco would be calculated on the basis of the standards of living in Morocco. Chapter 3, pp. 143, 159, and 173.

296 

Chapter 6

agreed rule is that they are subject to the legislation of the Contracting State whose administration employs them.55 For seamen, the situation is less consensual with the usa bilateral agreements having various rules on the law applicable depending where the vessel is from.56 Despite this lack of consensus, in order to bring clarity, the rule in the EU model agreement could be the flag principle.57 This means that a worker employed on board a ship that flies the flag of a Contracting State, remains subject to the legislation of that Contracting State. Particularly for posted workers, the specific conflict rule would entail that those workers employed by a company in one of the Contracting States would remain subject to the legislation of that State even though they move to work in the other Contracting State. Such an exception to the lex loci laboris would be provided for a maximum of 60 months. The maximum of 60 months is mandatory but there would be an option for the Member States to go for a maximum of 24 months instead. This choice for a maximum of 60 months as being the standard period of exemption and 24 months being the optional period of exemption might come as a surprise considering the fact that within the framework of Regulation 883/​2004, 24 months is the standard period of exemption.58 However, posting from third country, particularly posting from overseas, does not seem to pose similar issues as posting from an EU Member State. For example, there is less risk of having unlimited duration of the posting of a worker from a third country. First of all, there is no free movement of persons or workers between the EU and third countries as there is between the EU Member States. Hence, in order to come to work in an EU Member States, third-​country nationals will have to apply for a work permit which will be for a limited duration. Secondly, the Intra-​Corporate Transfer Directive covers situations of posting from a third country, even though such a posting is called ‘intra-​corporate transfer’. In contrast to the rules under the Posted Workers Directive which apply to posted workers from an EU Member State,59 the rules of the Intra-​Corporate Transfer Directive provide for a maximum duration of the intra-​corporate transfer.60

55 56 57 58 59 60

Chapter 3, pp. 143–​144, 159, and 174. Chapter 3, pp. 143, 158–​159, and 173–​174. The flag principle is also the rule advised by B. Spiegel in his report. B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010) 38. Article 12 of Regulation 883/​2004. Directive 96/​71/​EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of provision of services, [1997] OJ L 18/​1. Article 12 of the Intra-​Corporate Transfer Directive.

An EU Model Agreement as a Second ‘Solution’

297

There is therefore no risk of having unlimited duration of the posting as it is currently the case under the Poster Workers Directive.61 Even if the risk of unlimited duration of posting from third countries was to exist to the same extent as for posting from EU Member States, the limit of 24 months of exemption from the lex loci laboris rule will not be easily accepted by third countries who already have a longer period in the bilateral agreements with the Member States. In the case of India and usa, all the bilateral agreements analysed in this research provide for 60  months, more than double the maximum period allowed under Regulation 883/​2004.62 More generally, within the 12 bilateral agreements signed by India with the Member States, only the one with Sweden has the period of 24 months as the standard period of exemption for posted workers.63 Therefore, it would be very unlikely that India or the usa accept to conclude or renegotiate agreements that would reduce the period of 60 months to a period of 24 months. 2.5 Export of Benefits Additionally, a provision on export of benefits should be included. As already stated in the context of material scope, an EU model agreement would be primarily about statutory old-​age pension rights, invalidity and survivors’ benefits with the possibility to include other social security benefits in its scope. The same goes for the export of benefits. The provision on the export of benefits would be mandatory for statutory old-​age pension rights, invalidity and survivors’ benefits with the option to export other benefits. In the provision on export of benefits, it could be included that reduction, modification or suspension of rights are not allowed solely on the basis that the beneficiary resides in the other Contracting State. That provision would be in line with Article 7 of Regulation 883/​2004. Additionally, the provision on export of benefit would provide that if nationals of one of the Contracting States are allowed to export benefits to a third country, the same should be true for the nationals of the other Contracting States. 61

62 63

Article 2(1) of the Posted Workers Directive defines a posted worker as a worker who carries out work in the territory of a Member State other than the state in which he/​she normally works for a limited period of time. However, a ‘limited period of time’ is not defined by the Directive. For an explanation of the problem, see European Parliament, ‘Posting of Workers Directive-​current situation and challenges’ (Study for the empl Committee) IP/​ A/​EMPL/​2016-​07, 28–​29. Chapter 3, pp. 144–​145, 159. Article 7 of the Agreement on Social Security between the Republic of India and the Kingdom of Sweden.

298 

Chapter 6

2.6 Aggregation of Periods of Insurance One important element of social security coordination is the inclusion of a provision on aggregation of periods of insurance.64 That rule is very important for mobile workers in order to rebuild a unity in their career. It permits periods of insurance completed in one State to be taken into account for the purpose of acquisition of pension rights in the other State. Due to its importance, a provision on the aggregation of periods of insurance would be a mandatory element of an EU model agreement. In the mandatory provision on aggregation of periods of insurance, it would be mentioned that when the legislation of a Contracting State subordinates the grant of a benefit to periods of insurance in a specific occupation, only equivalent periods of insurance completed in the other Contracting State for the same occupation would be taken into account. Moreover, the provision on aggregation of periods would also apply for periods in a third country with whom both Contracting States have a social security coordination agreement. Similarly, the aggregation of periods would apply also for periods completed in a country where Regulation 1408/​71 or Regulation 883/​2004 apply. Optionally, the provision on the aggregation of periods provision would be extended to periods of insurance completed in a third country with whom one of the Contracting State has an agreement. In addition, an EU model agreement would make it mandatory to have a provision on the method of calculation concerning the aggregation of periods of insurance for the calculation of pension rights. It is essential to have such a provision either in a bilateral agreement or in an administrative agreement attached to a bilateral agreement in order to avoid any disputes between the different institutions. However, the exact method of calculation would be left to the Member States when they conclude their bilateral agreements with third countries. 2.7 Administrative Cooperation In order to facilitate the process of access and export of benefits, an EU model agreement would include a provision on administrative cooperation. Furthermore, an EU model agreement would call for further administrative arrangements to be concluded between the Contracting States in order to fill in the details of the social security coordination.

64

The aggregation of periods of insurance permits the maintenance of rights acquired. ilo, Social Security Coordination for non-​EU States in South and Eastern Europe: a legal analysis (2012) 1.

An EU Model Agreement as a Second ‘Solution’

299

Currently, the level of details concerning the administrative cooperation differs in the agreements concluded by the Member States.65 Providing for an extensive list of duties for the competent authorities to respect might have the advantage of insuring clarity and compliance. However, less formal details might render the process more flexible. In any case, what really matters is that competent authorities regularly exchange details of problems they encounter and assist each other’s in finding solutions. In that regard, a dispute resolution provision would be included in any future EU model agreement. Also, an EU model agreement would have a provision ensuring that the standards of reference for data protection should be the legislation of the Contracting States. With regard to the increasingly relevant issue of data protection, it should be noted that both the old Directive66 and the new Regulation67 on General Data Protection apply to the transfer of data from the EU to third countries.68 Additionally, an EU model agreement would contain a provision concerning equivalence of claims, notices and appeals. That provision entails that the Contracting State where the claim should have been filed, would nonetheless accept the claim if it was presented within the specified time limit of the incompetent State. Lastly, an EU model agreement would encourage the inclusion of a rule concerning the termination of the agreements. This would bring clarity regarding the possibilities to terminate the agreements and to allow Contracting Parties to have sufficient time to secure rights acquired as well as rights in course of acquisition. In addition, the situation of rights acquired and in course of acquisition would need to be specified in an EU model agreement. 3

Conclusion

This Chapter presented a solution to develop a common EU approach to social security coordination with third countries through the drafting of an EU model agreement. 65 66 67

68

Chapter 3, pp. 149–​150,161, 178–​179. Directive 95/​46/​EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ L 281/​31. Regulation (EU) 2016/​679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​46/​EC (General Data Protection), [2016] OJ L 119/​1. Articles 25 and 26 of Directive 95/​46; Articles 44–​50 of Regulation 2016/​679.

300 

Chapter 6

The discussion on an EU model agreement on social security coordination with third countries has focused on the Member States and the EU institutions. However, an EU model agreement would be potentially used in relation to the conclusion of bilateral agreements with third countries. Hence, the place of the third countries in that process cannot be ignored. First, it might be questionable whether an EU model agreement would make sense in the context of third countries with whom the EU already has an agreement on social security coordination.69 Turkey and the EU have adopted measures on social security coordination through Decision 3/​80 in the context of the Association Agreement. However, the provisions of Decision 3/​80 still need to be implemented by further measures. The Court of Justice has given direct effect to two provisions: Article 3 on equal treatment70 and Article 6 on the export of pension rights.71 In addition, due to a change of the EU legislation72 and therefore references to it in Decision 3/​80, there is a need to update Decision 3/​80.73 In that context of revision of Decision 3/​80 and because not all provisions of Decision 3/​80 have direct effect, it would be beneficial to have an EU model agreement as a mandate for future negotiations. If the content of an EU model agreement includes direct effective rights for the individuals, there would be no reasons for the Turkish counterpart to oppose. In addition, it must be kept in mind that the content of the EU model agreement would be flexible enough in order to integrate the political and legal realities of the third country, here Turkey. Besides third countries with whom the EU already has an agreement, there are third countries who deal exclusively with the Member States when it comes to social security matters. Such third countries are, for example, India and the usa. For both the usa and India, the second proposed ‘solution’ of having an 69

70 71 72 73

In that regard, it must be recalled that the eea efta States and Switzerland are not to be considered as third countries for the purpose of social security coordination (Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589, para.58; Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97, para.65). Case C-​262/​96 Sürül, ECLI:EU:C:1999:228. Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346. Regulation 1408/​71 was replaced by Regulation 883/​2004. The Council has adopted a Decision in 2012 in order to update Decision 3/​80. See Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​19–​25.

An EU Model Agreement as a Second ‘Solution’

301

EU model agreement while still retaining the negotiation and the conclusion with the Member States is more likely to be accepted than the first proposed ‘solution’ of having the EU negotiating and concluding an agreement itself. Indeed, one element that is clear from the Indian and the American side is that they do not wish to negotiate and conclude with the EU directly but prefers contacts with the Member States.74 The advantage of an EU model agreement is that it ensures coherency while still allowing for flexibility; it is drafted by experts in the matter and the end product is still negotiated and concluded by the Member States. This Chapter has showed that drafting an EU model agreement is legally feasible. The analysis of the EU and national agreements has helped to highlight elements that could be agreed upon and inconsistencies that could be solved. Despite the legal feasibility of an EU model agreement, the political feasibility remains to be seen. 74

The literature points out that the US administration prefers to deal with Member States on bilateral agreements level in order to be a stronger negotiating power through the mantra of ‘divide them to rule’, see C.  Budd, ‘US-​EU Relation After Lisbon:  Reviving Transatlantic Cooperation’ (lse Research Online 2010) 35. The same is true for India, see S.  A. Wülbers, The Paradox of EU-​Indian Relations:  Missed Opportunities in Politics, Economics, Development Cooperation, and Culture (Lexington Books 2011) 148.

­c hapter 7

Concluding Remarks and Policy Recommendations Although the political agenda in the EU is currently not dominated by the goal of promoting labour migration, the ageing population combined with labour shortages require a shift in the political debate. In the context of facilitating labour migration, one of the important elements to take into account is social security coordination. Social security coordination is a technique that builds bridges between social security systems in order to reduce the risks faced by migrants. Social security coordination is composed of five fundamental elements concerned with conflicts of laws, equal treatment, aggregation of periods of insurance or employment, export of benefits and administrative cooperation. Traditionally, social security coordination is achieved by the States through the conclusion of bilateral agreements. Up until today, States have been the main actors in social security coordination. EU Member States have concluded over 350 bilateral agreements with third countries. The EU has also adopted measures relevant for the field of social security coordination. Additionally, international organisations such as the ilo have adopted standards which can have an impact on social security coordination. There are therefore three layers of instruments relevant for this research on social security coordination: national instruments, EU instruments and international instruments. This research started with the premise that the current approach to social security coordination with third countries is composed of a patchwork of instruments. Based on that premise, this research had two aims: –​ Identifying what were the elements of the different approaches to social security coordination with third countries –​ Developing a common EU approach based on the different elements identified Those two main aims were translated into a research question:  how could a common EU approach on social security coordination with third countries be developed and what elements could be included in that approach?

© Koninklijke Brill NV, Leiden, 2020 | DOI:10.1163/9789004415331_008

Concluding remarks and policy recommendations

1

303

Identifying the Elements of the Different Approaches to Social Security Coordination with Third Countries

1.1 The EU Approach In the light of the first aim of this research, Chapter 2 was dedicated to the analysis of the EU instruments on social security coordination relevant for third-​country nationals. Chapter 2 was divided into two parts: the internal dimension and the external dimension of EU social security coordination. The internal dimension of EU social security coordination refers to the rules on social security coordination adopted by the EU in order to facilitate free movement within the EU. Hence, those rules are designed to cover situations of mobility within the EU. Originally, the internal dimension of EU social security coordination was governed by Regulations 3 and 4, later replaced by Regulations 1408/​71 and 574/​72, then replaced by Regulations 883/​2004 and 987/​ 2009, which were adopted to the benefit of EU citizens. However, since 2003, those rules have been extended by Regulation 859/​2003, later replaced by Regulation 1231/​2010, to third-​country nationals who were not already covered by the Regulations and who are moving within the EU. The internal dimension of EU social security coordination can be described as a uniform system of extensive coordination rules. It is a uniform system in the sense that the rules that apply to both EU citizens and third-​country nationals who are in situations of intra-​EU mobility are the rules of Regulation 883/​2004. Indeed, even though Regulation 1231/​2010 is the relevant instrument for third-​country nationals, its content refers to Regulation 883/​2004. Furthermore, it is an extensive system of coordination rules as the rules contained in Regulation 883/​2004 cover a large number of risks through the coordination of legislation on sickness benefits, maternity and equivalent paternity benefits, invalidity benefits, old-​age benefits, survivors’ benefits, benefits in respect of accidents at work and occupational diseases, death grants, unemployment benefits, pre-​retirement benefits, and family benefits (Article 3 of Regulation 883/​2004). In addition, the 91 provisions enshrined in Regulation 883/​2004 concern all the elements of social security coordination in detail: rules on determining the law applicable, rule on aggregation of periods of insurance, rule on equal treatment, rule on exports of benefits and rules on administrative cooperation. It can be said that there is a common EU approach to the internal dimension of EU social security coordination. In comparison, the external dimension of EU social security coordination is a patchwork of instruments. The wording of ‘external dimension’ was used by the European Commission in a 2012-​communication in order to describe the EU instruments covering the social security rights of third-​country nationals

304 

Chapter 7

who move from a third country to the EU, or vice versa. The instruments adopted under the external dimension can be divided into two type of EU measures: unilateral measures and EU agreements with third countries. On the one hand, the EU adopted unilateral measures through the migration Directives containing reference to social security in their equal treatment provisions. Those migration Directives are the Single Permit Directive, the Long-​Term Residence Directive, the Blue Card Directive, the Students and Researchers Directive, the Intra-​Corporate Transfer Directive and the Seasonal Workers Directive. Even though they all provide for equal treatment with regard to social security, they all differ in the derogations from equal treatment they allow the Member States to adopt in their implementations of the Directives. Additionally, the Single Permit Directive, the Students and Researchers Directive, the Seasonal Workers Directive and the Intra-​Corporate Transfer Directive provide for the export of old-​age, invalidity and survivors’ benefits.1 The Blue Card Directive provides for the export of old-​age benefits only. According to the European Commission, these different equal treatment provisions provide for ‘unparalleled standards of social security rights for migrants’.2 Furthermore, as the EU migration Directives are unilateral measures, they are not based on reciprocity. As a result, they only concern the situation of third-​country nationals in the EU and not the situation of EU citizens in third ­countries. Next to those unilateral measures, the EU has also adopted agreements with third countries that include social security coordination provisions. Based on the analysis conducted in Chapter 2, the different agreements can be classified into three categories. The first category of agreements concerns EU agreements with third countries that are considered as Member States of the EU for the purpose of social security coordination. That first category of agreements only concerns the eea efta States and the Swiss Confederation to whom the EU internal rules on social security coordination of Regulation 883/​2004 have been extended. In fact, the social security coordination with those third countries is rather part of the internal dimension than the external dimension. The second category of EU agreements is the agreements that include

1 The Seasonal Workers Directive provides for equal treatment with regard to export of pension rights without defining what pension rights mean. 2 Communication from the European Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the regions, ‘Maximising the Development Impact of Migration:  the EU contribution for the UN High-​level Dialogue and next steps towards broadening the development-​migration nexus’, 21 May 2013, Brussels, COM(2013) 292 final, 5.

Concluding remarks and policy recommendations

305

rules on social security coordination having been granted direct effect. Those agreements are the EU-​Turkey Association Agreement and its Decision 3/​80, and the Euro-​Mediterranean Agreements with Algeria, Tunisia and Morocco. These agreements need further measures to be adopted by the Association Councils in order to give full effect to the provisions on social security coordination. Despite the fact that the Association Councils have not implemented the agreements, some of the provisions of the agreements were drafted in a precise and unconditional manner which permitted the Court of Justice to grant them direct effect. In the context of the EU-​Turkey Association Agreement and its Decision 3/​80, the Court of Justice granted direct effect to Article 3(1) on equal treatment in Sürül and to Article 6(1) on the export of benefits in Akdas. Similarly, in the context of the Euro-​Mediterranean Agreements with Algeria, Tunisia and Morocco, the Court found that the provisions on the prohibition of non-​discrimination were directly effective in Krid (for the emaa with Algeria), in Gattoussi (for the emaa with Tunisia), and in Kziber (for the emaa with Morocco). Finally, the third and last category of EU agreements is the agreements that include social security coordination provisions calling for further measures to be adopted. Those EU agreements are the Cooperation Agreement with San Marino, the Euro-​Mediterranean Agreements with Egypt, Lebanon, Jordan, Israel; the Stabilisation and Association Agreements with the Former Yugoslav Republic of Macedonia, Albania, Montenegro, Serbia, Bosnia and Herzegovina; as well as the Partnership and Cooperation Agreements with Russia, Moldova and Ukraine. All those agreements are similar in the sense that they provide which elements of social security coordination should be included in future measures to be adopted by the Association Councils or the Stabilisation and Association Councils. The elements to be included in future measures however differ according to the agreements. Overall, some conclusions can be drawn from the analysis of the different instruments developed under the external dimension as compared to the instruments under the internal dimension. Of course, those conclusions should be considered in the light of the different aims behind the internal and external dimensions. The internal dimension rules were created in the context of the completion of the internal market in order to facilitate the free movement of persons whereas such an aim does not exist for the external dimension. Firstly, it is fair to say that there is no common approach to the external dimension of EU social security coordination. That lack of common approach is not surprising given the fact that there is a lack of common vision on legal migration. The European Commission originally intended to have a holistic approach to legal migration by proposing a single EU instrument on the conditions for entry and residence of third-​country nationals in the EU. However,

306 

Chapter 7

that proposal failed. The result was the adoption of the EU migration Directives following a sectoral approach. While it would be ideal to have a holistic approach to legal migration, the idea of a single instrument on legal migration is not foreseen in the near future. Nonetheless, a common EU approach to social security coordination could still be pursued if the same provision on equal treatment with regard to social security is included in all the EU migration Directives. Furthermore, there is also a lack of a common approach when it comes to the social security coordination provisions included in the different EU agreements with third countries. However, that lack of a common approach is not necessarily a problem. Wishing uniform rules for all third countries would be denying the specificities of their different social security systems and their actual relationship with the EU and its Member States. Therefore, it is important to allow some differentiation between the third countries. What is currently problematic however, in the agreements concluded with third countries are the provisions on social security coordination which only call for further measures to be adopted. It is problematic as the practice shows that those further measures are not adopted and that the social security provisions stay at the stage of political promises. In that regard, it is recommended to avoid the inclusion of social security coordination provisions that only call for further measures to be adopted and that are not drafted in a precise and unconditional manner. Secondly, the external dimension of EU social security coordination focuses on third-​country nationals only whereas the internal dimension provides for rules applicable to both EU citizens and third-​country nationals. Ideally, the EU should also strive for including rules applicable to EU citizens in its external dimension of EU social security coordination. Currently, the EU migration Directives are unilateral EU measures covering the situations of third-​ country nationals in the EU. The EU agreements with third countries and the social security coordination measures adopted therein, such as the Association Agreement between the EU and Turkey and its Decision 3/​80, focuses on third-​country nationals residing and working in the EU and returning back to the third country. However, nowadays, there is no valid reason for the EU to disregard the situation of EU citizens residing and working in third countries. Agreements on social security coordination are traditionally based on the principle of reciprocity which implies that the contracting parties give similar advantages to each other’s. As the EU migration Directives are unilateral measures, they could not be based on reciprocity. However, the same is not true for EU agreements that include elements of social security coordination with third countries. In fact, the EU became aware of the lack of protection offered to EU citizens, and it is trying to change this situation when amending

Concluding remarks and policy recommendations

307

its agreements with third countries and the social security coordination measures adopted therein. For example, in the update of Decision 3/​80, the Draft Decision proposed by the Council is based on reciprocity. However, that Draft Decision has not been adopted by the EU-​Turkey Association Council. In that regard, it is recommended that the EU makes it a priority to include elements of reciprocity in its agreements with third countries that include social security coordination provision so as to secure the social security rights of EU citizens residing and working outside the EU. 1.2 The National Approaches Keeping in mind the first aim of this research of identifying the different elements of social security coordination with third countries, Chapter  3 focused on the comparative legal analysis of the Member States’ bilateral agreements with third countries. In Chapter  3, nine bilateral agreements were analysed:  Belgium-​India ssa, Netherlands-​India ssa, Germany-​India ssa, Belgium-​u sa ssa, Netherlands-​u sa ssa, Germany-​u sa ssa, Belgium-​Turkey ssa, Netherlands-​Turkey ssa and Germany-​Turkey ssa. The purpose of the comparative analysis was to discuss the differences and similarities among the national approaches. Several conclusions were drawn from the comparative legal analysis. Firstly, the main problem concerning the national instruments is that not all Member States conclude bilateral agreements on social security coordination. This is problematic as without bilateral agreements, the migrant workers can only rely on the unilateral measures provided by each country. For example, while some countries could provide for export of benefits unilaterally, this is not the case for all countries. Hence, it is recommended that Member States conclude bilateral agreements in order to secure the social security rights of both third-​country nationals and EU citizens. Then, although the bilateral agreements are concluded on an ad hoc basis, they contain similar elements. All of them contained the fundamental elements of social security coordination listed in the Introduction Chapter and repeated at the beginning of Chapter  3. Hence, all the bilateral agreements analysed contained a rule on determining the law applicable, a rule on equal treatment, a rule on the export of benefits, a rule on the aggregation of periods of insurance and a rule on administrative cooperation. In addition, all of the bilateral agreements were concluded for an indefinite period and were accompanied by an administrative arrangement laying down further the details of the administrative cooperation. Besides the fact that the bilateral agreements contained the same elements, the details of the provisions of each bilateral agreement differed. The

308 

Chapter 7

differences are not a negative element per se as social security agreements are founded on the reciprocity principle which implies that the agreements need to adapt to the different social security systems. Hence, it is not surprising to find different details in the bilateral agreements concluded with Turkey and with India. Despite the differences, the bilateral agreements with the same third country were in fact very similar even in the details. The hypothesis formulated at the end of Chapter 3 was that the similarities are probably coming from the third country instead of the Member States acting together. Concerning the differentiation between the different third countries, it must be said that the more geographically close the third country is, the more social security rights are contained in the bilateral agreement. For example, the bilateral agreements with Turkey were coordinating several benefits such as family, work injury, old-​age, invalidity, and survivors’ benefits whereas the bilateral agreements with India and usa were exclusively about statutory pension rights (i.e. old-​age, invalidity and survivors’ benefits). Also, the more geographically removed the third country was, the longer the period for exemption from contributions for posted workers was. Hence, the period for exemption from social security contributions for posted workers was of 60 months for the bilateral agreements with India and usa. The period for exemption for posted workers was of 24 months in the bilateral agreements with Turkey. The Relevance of International Instruments for the Development of a Common EU Approach Although the purpose of Chapter 4 was similar to the purpose of Chapters 2 and 3 in the sense that they all aimed at identifying the different approaches to social security coordination, Chapter  4 also reflected on the relevance of the international instruments for the development of a common EU approach. The international instruments analysed in Chapter 4 are instruments adopted by the UN, the ilo and the Council of Europe. The majority of those instruments provide for minimum standards in the field of social security and only a few provide for minimum standards of social security coordination. The international instruments analysed in Chapter 4 have varying relevance for the field of social security coordination and for the future of a common EU approach. Despite the fact that the UN was the first international organisation recognising the right to social security, its instruments do not set higher standards than the standards already contained in the national or EU instruments. Therefore, the UN instruments would not have an influence on the future of a common EU approach. The importance of ilo conventions and recommendations should not be underestimated. On the one hand, it has been demonstrated that the standards 1.3

Concluding remarks and policy recommendations

309

developed by the ilo in its conventions and recommendations have become common principles generally accepted by the Member States. One the other hand, it has been shown that there is a continuous effort from the EU to promote the ratification and the compliance by the Member States with ilo conventions. Since 2004, the EU and the ilo have a Strategic Partnership and the European Commission called for further compliance with ilo standards in the development of a common EU approach.3 Furthermore, Article 151 tfeu provides that the EU and its Member States should have in mind the fundamental social rights contained in the European Social Charter, which itself has to comply with, inter alia, ilo Convention No. 102, in conducting their social policies. The analysis of the relevance and impact of the European Convention on Social and Medical Assistance was informative for the future of a common EU approach. It was highlighted that those Member States who had ratified the European Convention on Social and Medical Assistance decided to make reservations to limit the principle of equal treatment thereby excluding non-​ nationals from being granted social assistance benefits. This element was informative for the future of a common EU approach as it shows that the Member States would be reluctant to agree to an equal treatment provision applicable to social assistance benefits. The European Social Charter and the echr always need to be respected by the EU Member States when they implement EU law. As a result, the rights contained in the European Social Charter and in the echr as well as their interpretation given by the European Committee of Social Rights and by the ECtHR respectively constitute a minimum threshold for the future of a common EU approach. It was shown from the case law of the ECtHR that States have to put very weighty reasons in discriminatory cases in the field of social security. 2

Developing a Common EU Approach to Social Security Coordination with Third Countries

Concerning the second aim of this research which was concerned with the development of a common EU approach, two policy options have been proposed in Chapter 5 and 6 respectively. Before discussing the two policy options proposed in this research, several considerations are made.

3 European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) COM (2012) 153 final, 9.

310 

Chapter 7

Firstly, there is an added value in developing a common EU approach and in involving the EU in a matter that is currently mostly dealt by the Member States. In Chapter 5, it was argued that from an EU perspective, negotiating and concluding agreements on social security coordination or that include social security coordination provisions with third countries would serve several purposes. It would reinforce the place of the EU on the international scene as a global actor on social protection. It would also permit the EU to secure the rights of EU citizens in third countries as most of the current EU initiatives on social security coordination with third countries focus on the rights of third-​ country nationals. From the Member States’ perspectives, achieving a common EU approach would benefit their negotiating position vis-​à-​vis third countries. It would permit the Member States to have a stronger bargaining power. Secondly, the two ‘solutions’ which are proposed aim at furthering a common EU approach with third countries but do not advocate for the same approach with all third countries. Indeed, it is believed that there are good ­reasons for not having the same type of social security coordination with Turkey and with India for example. Elements such as the existing social security coordination which the EU and the Member States have with those third countries as well as the migration patterns between the EU and those third countries, were taken into account when coming to the conclusion that there should be a common EU approach per third country instead of having a common EU approach that would pretend to fit all third countries. Hence, the two ‘solutions’ propose a common EU approach while allowing for differentiation of the third countries. 2.1 EU Agreements as a First ‘Solution’ Envisaged The first ‘solution’ or policy option considered by this research concerned the conclusion of EU agreements instead of 28 Member States’ agreements with third countries. That solution was in fact proposed by the European Commission in a 2012 communication. According to the European Commission, a common EU approach could be developed through the conclusion of EU social security coordination agreements with third countries and/​or the inclusion of social security provisions in existing and future Association Agreements with third countries. Both options, put on the table by the European Commission, focus on the EU as the principal actor to develop that common approach to social security coordination with third countries. In addition, those options pre-​suppose that it is the EU itself who would negotiate the agreements with third countries. Considering the fact that the EU would act in a field that is currently mostly in the hands of the Member States, Chapter 5 recalled the importance of

Concluding remarks and policy recommendations

311

choosing an appropriate legal base in the light of the principle of conferral. In that context, the general EU mandate for concluding international agreements with third countries is found in Article 216 tfeu. However, more specific substantive legal bases are needed for the conclusion of EU agreements with third countries. The first option put forward by the European Commission concerned the inclusion of social security provisions in existing and future Association Agreements. In Chapter 5, it was argued that while Association Agreements are certainly the most suitable type of agreements to include such provisions, other types of EU international agreements could also potentially include social security provisions. Hence, the inclusion of social security coordination provisions in Association Agreements under Article 217 tfeu, in Partnership and Cooperation Agreements under 209 tfeu, in Strategic Partnership Agreements under 212 tfeu, or in Free Trade Agreements under 207 tfeu was envisaged. The conclusion was the same for all those agreements: while the legal bases could permit the inclusion of a social security coordination provision, that social security coordination provision would not provide for detailed coordination. Indeed, it was argued that the more detailed a social security coordination provision is envisaged, the more need there will be for adding a specific legal base on social security to reflect that element. From a legal point of view, the inclusion of social security provisions in EU international agreements would imply that those provisions would not be detailed and would need further implementation. This conclusion is reinforced by the current political practice in the EU agreements that include a social security coordination provision. Indeed, it has been shown in Chapter 2 that the Member States are opposed to the inclusion of precise and unconditional social security coordination provisions in EU agreements with third countries. As a consequence of those findings, the option of including social security coordination provisions in EU agreements for the purpose of developing a common EU approach was not the preferred option. The second option of concluding EU agreements strictly on social security coordination with third countries was then considered. First of all, that option would be a new type of EU agreement with third countries. The content of such an agreement would be exclusively on social security coordination. In fact, such an agreement would function in the same way as Member States’ bilateral agreements on social security coordination do, but instead of having potentially 28 bilateral agreements, there would be only one EU agreement. For this second option, the main obstacle to its realisation is the lack of legal basis. Indeed, the EU agreement being strictly on social security coordination, its legal bas(e)s would need to reflect that element. Furthermore, an EU

312 

Chapter 7

agreement on social security coordination with a third country would coordinate the social security system of the third country with the social security systems of the Member States. It would cover the situation of both EU citizens and third-​country nationals in the EU and in the third country. The traditional legal basis for social security coordination, Article 48 tfeu, could not be used for covering the situation of third-​country nationals in the EU and in a third country. The possibility of adding Article 216 tfeu or 217 tfeu to Article 48 tfeu was envisaged but rejected. Article 216 tfeu would require to prove that an EU agreement on social security coordination with a third country would permit the attainment of the objectives of Article 48 tfeu which relates to the facilitation of the free movement of workers within the EU. In that regard, it would be difficult to consider that an EU agreement on social security coordination with a third country would also support the objectives of free movement of workers within the EU. Concerning the addition of Article 217 tfeu to Article 48 tfeu, this solution has only been accepted once by the Court of Justice in the context of the implementation of the Association Agreement between the EU and Turkey.4 Given the particular existing relationship between the EU and Turkey, the possibility of combining Article 217 tfeu with Article 48 tfeu would not fit any other third country. The traditional legal basis for covering situations of third-​country nationals, Article 79(2)(b) tfeu, would also not be appropriate for the conclusion of an EU agreement on social security coordination with third countries. It has been used to adopt Regulation 1231/​ 2010 which concerns the rules on social security coordination for third-​country nationals moving within the EU. However, it was argued that Article 79(2)(b) tfeu would not be an appropriate legal base for covering the situation of EU citizens, either within the EU or in a third country. Article 153 tfeu on the adoption of EU measures in the field of social policy was also not considered as an appropriate legal basis because the use of Article 153 tfeu would go beyond its purpose. Indeed, Article 153 tfeu is to be used for adopting measures encouraging the cooperation between the Member States in areas such as social security and social protection of workers. However, adopting an EU agreement on social security coordination with a third country would entail more than encouraging the cooperation between the Member States. It would in fact replace the Member States’ initiatives in that matter. Finally, the legal bases of Article 352 tfeu and enhanced cooperation were equally dismissed. The use of Article 352 tfeu would face the criticism of expanding the EU competence in the field of social security coordination with third countries, a domain still 4 Case C-​81/​13 United Kingdom v Council, ECLI:EU:C:2014:2449.

Concluding remarks and policy recommendations

313

mainly regulated by the Member States. Enhanced cooperation would require an existing legal basis in the Treaties which would appear to be complicated and would face the same practical consideration as Article 79(2)(b) tfeu, namely bearing the risk of not having all the Member States participating in a common EU approach. For all the foregoing considerations, the ‘solution’ or policy option of having EU agreements, strictly on social security coordination or only including some provisions on social security coordination, with third countries is not the recommended solution for ensuring a common EU approach to social security coordination with third countries. 2.2 An EU Model Agreement as a Second ‘Solution’ Envisaged The second ‘solution’ or policy option to achieve a common EU approach on social security coordination with third countries was proposed in Chapter 6. The second policy option has focused on a softer method to the development of a common EU approach via the draft of an EU model agreement. Chapter 6 started by recognising that model agreements on social security coordination already exist at the level of the Council of Europe and of the ilo with ilo Convention No. 157 and Recommendation No.167. Whereas the ilo Convention and Recommendation provide for minimum standards to be followed by States when they conclude bilateral agreements, the Council of Europe model agreement is a draft agreement that needs to be filled in by the States when using it. The Council of Europe model agreement also provides for alternative provisions to each main provision. The practices of the Member States show that they have been reluctant to follow model agreements. However, the case of Austria is informative as the Austrian delegation follows the model agreement of the Council of Europe. The reason for that compliance was driven by the fact that it was one of the experts from the Austrian delegation who drafted the Council of Europe’s model agreement. If an EU model agreement is to be proposed, it should learn from the downfalls and successes of those examples. Based on this, it is recommended that an EU model agreement presents the following characteristics:  (1) valuable for the actors who could potentially use it; (2)  drafted by the relevant experts; (3)  flexible and based on the best practices; (4) non-​binding instrument. 2.2.1

An EU Model Agreement Must Be Seen as Valuable for Both the Member States and the EU It was explained that an EU model agreement would be valuable for both the Member States and for the EU itself. It was argued that an EU model agreement could serve as a mandate for negotiation for the Member States when

314 

Chapter 7

they conclude bilateral agreements with third countries. It was also argued that an EU model agreement could be useful for the EU itself. Indeed, the analysis of the EU instruments conducted in Chapter 2 highlighted that the EU migration Directives contain different equal treatment provision. In that regard, in the revision or the adoption of new EU migration Directives, it is recommended that the European Commission uses the equal treatment provision of the EU model agreement as the basis for its proposal. Furthermore, the EU agreements with third countries contain very different levels of social security coordination with some agreements providing for an equal treatment clause that is directly effective on some other agreements that only provide for future measures to be taken on social security coordination. In Chapter 6, it was proposed that, when the EU chooses to include provisions calling for future social security coordination to be adopted, those provisions should follow the EU model agreement. Similarly, when the EU concludes an agreement with a third country that contains directly effective provisions on social security coordination, those provisions are proposed in accordance with the EU model agreement. 2.2.2 An EU Model Agreement Must Be Drafted by the Relevant Experts It is recommended that the draft of the EU model agreement comes from the working group on the international dimension on EU social security coordination acting within the Administrative Commission. The Administrative Commission is a body set up in the context of Regulation 883/​2004 in order to discuss the implementation and difficulties faced by the Member States in working with Regulation 883/​2004. The Administrative Commission is made up of representatives from each Member State as well as a representative from the European Commission who acts as the Secretariat. Within the Administrative Commission, the working group on the international dimension on EU social security coordination meets annually to discuss the Member States’ practices and strategies to social security coordination with third countries. The purpose of that group is currently not concerned with achieving a common EU approach to social security coordination but rather to benefit from the experiences of each other. Given the fact that this working group is composed of the Member States delegations concluding bilateral agreements with third countries as well as a representative of the European Commission, this working group is the target group for an EU model agreement. Indeed, it would be those persons composing the working group who would use the EU model agreement. Therefore, it was proposed to leave the draft of the EU model agreement to those experts with the hope that they would be more inclined to follow it in the future.

Concluding remarks and policy recommendations

2.2.3

315

The Content of an EU Model Agreement Must Be Flexible and Based on the Best Practices The content of the EU model agreement was discussed. It was recommended to draft one model agreement. However, as explained before, it is important to allow differentiation of third countries in the common approach to be pursued. Therefore, the proposed content of the EU model agreement would contain mandatory clauses which reflect the minimum standards to be respected together with optional clauses which permit to allow differentiation. In including optional provisions, such an EU model agreement would allow the reality of the relationship between the EU and the Member States with third countries to be considered as well as to adapt to the demands of the different third countries. Despite the fact that the EU model agreement is recommended for drafting by the working group on the international dimension of EU social security coordination within the Administrative Commission, this research still proposes that the elements should be contained in the EU model agreement based on the analysis of the national, EU and international instruments conducted in Chapters  3, 2 and 4 respectively. Besides the inclusion of definitions that could be based on Article 1 of Regulation 883/​2004, an EU model agreement would provide for a personal scope based on the fact that a person is subject to the legislation of a State. Hence, an EU model agreement would not promote a personal scope based on nationality requirement but rather based on insurance requirement. In that way, the EU model agreement would comply with the judgment of the Court of Justice in Gottardo which demands that all the EU Member States treat EU citizens equally with regard to the application of their bilateral agreements with third country. The Gottardo judgment implies that Member States cannot exclude the application of their bilateral agreements with third countries to other EU citizens on their basis of their nationality. Additionally, the personal scope of an EU model agreement would include family members and survivors deriving rights from persons who are or have been subject to the legislation of one of the Contracting parties. An EU model agreement would demand the inclusion of self-​employed persons with a possibility for Member States to exclude it in the case where the other Contracting Party does not have a scheme for self-​employed persons. Finally, as an optional clause, an EU model agreement would include economically inactive persons in its personal scope. In terms of material scope, an EU model agreement would be essentially focused on statutory pension benefits, i.e. old-​ age, invalidity and survivors’ benefits. The focus on statutory pension as the sole mandatory material scope for a model agreement comes from a purely practical consideration. This research has shown that the current practices of

316 

Chapter 7

the Member States bilateral agreements does not include all social security rights in their material scope. By opting for a more restrictive material scope, the EU model agreement could promote the inclusion of all the fundamental elements to social security coordination; i.e. rule on conflicts of laws, rule on equal treatment, rule on aggregation of periods of insurance, rule on export of benefits, and rule on administrative cooperation. 2.2.4 An EU Model Agreement Must Be a Non-​Binding Instrument The EU model agreement is proposed as a non-​binding/​optional instrument. Considering the fact that social security coordination with third countries is mainly in the hands of the Member States, rendering the EU model agreement binding with enforcement mechanisms would create obstacles for the Member States to even agree to the idea of a model agreement. Despite its non-​binding character, it does not mean that the EU involvement would not be justified, in the light of the principle of conferral, by references to Treaties provisions such as Article 9 tfeu or Articles 151 and 153 tfeu. Final Conclusion on the Future of the External Dimension of EU Social Security Coordination This research has shown that there is a need to develop a common EU approach to social security coordination with third countries. The analysis of the EU external dimension to social security coordination highlighted the fact that the EU approach is composed of EU migration Directives (unilateral measures) and EU agreements with third countries. Those two set of instruments contain different elements of social security coordination. It was argued that while the differentiation in EU agreement with third countries could be understood in the light of the different existing relationship, the differentiation in the EU migration Directives with regard to equal treatment and export of benefits could be avoided. Overall, the analysis of the EU external dimension to social security coordination revealed two main problems. The two main problems are the lack of unconditional and precise provisions on social security coordination in EU agreements with third countries and the lack of reciprocity in those agreements meaning that EU citizens were not offered protection. As a result, the common EU approach proposed in this research aimed at proposing provisions of social security coordination that could be unconditional and precise, and that covered both EU citizens and third-​country nationals. The elements of the national and international approaches were added in order to construct a common EU approach based on the best practices. From an institutional perspective, a common EU approach was envisaged as taking the form of either EU agreements (on social security coordination 2.3

Concluding remarks and policy recommendations

317

exclusively or a broader agreement, such as an Association Agreement, including social security coordination provisions) or an EU model agreement. The first policy option of EU agreements was not recommended for legal and political reasons. For political reasons, the Member States are opposed to the inclusion of precise and unconditional provisions in EU agreements. For legal reasons, even if the Member States were to agree to unconditional and precise social security coordination provisions, such provisions would require a legal basis reflecting the social security aspect of it. However, the conclusion of the analysis was that there was no such legal basis. Instead, the policy option of an EU model agreement is the preferred ‘solution’. However, it must be realised that although an EU model agreement would be legally feasible and would permit a common EU approach to social security coordination with third countries to be achieved, the political will of the Member States and of the EU itself to follow an EU model agreement would remain to be seen.

Bibliography 1

Primary Sources

1.1 1.1.1

EU Legislation, Documents and Case Law EU Agreements With Albania



With Algeria



With Bosnia and Herzegovina



With Canada

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, [2009] OJ L 107/​166.

Council Regulations (eec) No 2210/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the People’s Democratic Republic of Algeria, [1978] OJ L 263/​1. Euro-​Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, [2005] OJ L 265/​1.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, [2015] OJ L 164/​2.

Comprehensive Economic and Trade Agreement (ceta) between Canada, of the one part, and the European Union and its Member States, of the other part, 10973/​16, 2016/​0206 (nle). Joint Proposal for a Council Decision on the position to be adopted, on the Unionʼs behalf in the Joint Ministerial Committee and the Joint Cooperation Committee established by the Strategic Partnership Agreement between the European Union and its Member States, of the one part, and Canada of the other part, as regards the adoption of the Rules of Procedure of the Joint Ministerial Committee, the Terms of Reference of the Joint Cooperation Committee and the Terms of Reference of the subcommittees established by the Joint Cooperation Committee, 2017/​ 0279 (nle).

320 Bibliography

With efta States



efta Court case law



With Egypt



With the ilo

Agreement on the European Economic Area –​Final Act –​Joint Declarations –​Declarations by the Governments of the Member States of the Community and the efta States –​Arrangements –​Agreed Minutes –​Declarations by one or several of the Contracting Parties of the Agreement on the European Economic Area, [1994] OJ L 1/​3. Decision 1/​95 of the eea Council No 1/​95 of 10 March 1995 on the entry into force of the Agreement on the European Economic Area for the Principality of Liechtenstein, [1995] OJ L 86/​58. Decision of the eea Joint Committee No.158/​2007 of 7 December 2007 amending Annex v (Free movement of workers) and Annex viii (Right of establishment) to the eea Agreement, [2008] OJ L 124/​20. Decision of the eea Joint Committee No 76/​2011 of 1 July 2011 amending Annex vi (Social Security) and Protocol 37 of the eea Agreement, [2011] OJ L 262/​33.

Case E-​9/​97 Erla María Sveinbjörnsdóttir v Iceland [1998] efta Court Report 95. Case E-​2/​03 Ákæruvaldið (The Public Prosecutor) v Ásgeir Logi Ásgeirsson, Axel Pétur Ásgeirsson and Helgi Már Reynisson [2003] efta Court Report 185. Case E-​5/​06 EFTA Surveillance Authority v the Principality of Liechtenstein [2007] efta Court Report 298. Case E-​4/​11 Arnulf Clauder [2011] efta Court Report 216. Case E-​03/​13 Staten v/​Arbeidsdepartementet v Stig Arne Jonsson [2013] efta Court Report 136. Case E-​13/​15 Abuelo Insua Juan Bautista v Liechtensteinische Invalidenversicherung [2015] efta Court Report 720. Case E-​24/​15 Walter Waller v Liechtensteinische Invalidenversicherung [2016] efta Court Report 527. Case E-​11/​16 Mobil Betriebskrankenkasse v Tryg Forsikring [2017] efta Court Report 384.

Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part, [2004] OJ L 304/​1.

European Commission and ilo, ‘Memorandum of Understanding concerning the Establishment of a Strategic Partnership between the International Labour Organisation and the Commission of the European Communities in the field of Development’, 15.07.2004 Brussels and 16.07.2004 Geneva.

Bibliography



With India



With Israel



With Jordan



With Kosovo



With Lebanon



With Macedonia



With Moldova

321

Cooperation Agreement between the European Community and the Republic of India on partnership and development, [1994] OJ L 223/​24. Joint Statement, 13th EU-​India Summit, Brussels, 30 March 2016.

Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, [2000] OJ L 147/​1. Council, Press Release 12938/​12, ‘Eleventh Meeting of the EU-​Israel Association Council: Statement of the European Union’.

Euro-​Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part, [2002] OJ L 129/​1.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Kosovo, of the other part, [2016] OJ L 71/​3.

Euro-​Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, [2006] OJ L 143/​1.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, [2004] OJ L 84/​13.

Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Moldova, of the other part, [1998] OJ L181/​3. Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, [2014] OJ L 260/​1.

322 Bibliography

With Montenegro



With Morocco



With Russia



With San Marino



With Serbia



With the Swiss Confederation

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, Brussels, [2010] OJ L 108/​3.

Council Regulation (eec) No 2211/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, [1978] OJ L 264/​1. Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, [2000] OJ L 70/​1.

Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russia Federation, of the other part, [1997] OJ L 327/​3.

Agreement on Cooperation and Customs Union between the European Economic Community and the Republic of San Marino, [2002] OJ L 84/​43.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, [2013] OJ L 278/​14.

Agreement between the European Economic Community and the Swiss Confederation, [1972] OJ L 300/​189. Annex ii of the Agreement between the EC and its Member States on the one hand, and the Swiss Confederation on the other, on the free movement of persons, [2002] OJ L 114/​6. Decision No 1/​2012 of the Joint Committee established under the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons of 31 March 2012, replacing Annex ii to that Agreement on the coordination of social security schemes (2012/​195/​EU), [2012] OJ L 103/​51. Draft Institutional Framework Agreement, available at https://​www.fdfa .admin.ch/​ d ea/ ​ e n/ ​ h ome/ ​ v erhandlungen- ​ o ffene- ​ t hemen/ ​ v erhandlungen/​ institutionelles-​abkommen.html.

Bibliography

323

Swiss Federal Council, Press release, ‘European policy-​Federal Council decides to launch consultations on the draft institutional agreement’, available at https://​ www.admin.ch/​gov/​en/​start/​documentation/​media-​releases.msg-​id-​73292.html.



With Tunisia



With Turkey



With Tunisia



With Ukraine

Council Regulation (eec) No 2212/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Republic of Tunisia, [1978] OJ L 265/​1. Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, [1998] OJ L 097/​2.

Agreement establishing an Association between the European Economic Community and Turkey, signed at Ankara on 12 September 1963 [1977] OJ L 361/​1. Additional Protocol and Financial Protocol signed in Brussels on 23 November 1970, annexed to the Agreement establishing the Association between the European Economic Community and Turkey and on measures to be taken for their entry into force, [1972] OJ L 293/​3. Decision 3/​80 of the Association Council of 19 September 1980 on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C 110/​60. eu-​Turkey Association Council Note UE-​TR 4805/​15, 53rd meeting of the EU-​Turkey Association Council, available at http://​data.consilium.europa.eu/​doc/​document/​ ST-​4805-​2015-​INIT/​en/​pdf.

Council Regulation (eec) No 2212/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Republic of Tunisia, [1978] OJ L 265/​1. Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, [1998] OJ L 097/​2.

Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part, [1998] OJ L 333/​3. Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, [2014] OJ L 161/​3.

324 Bibliography

With USA

Declaration on U.S.-​ EC Relations, 1 December 1990, available at https://​ useu.usmission.gov/​declaration-​u-​s-​ec-​relations/​. New Transatlantic Agenda, 5 December 1995, available at https://​useu.usmission.gov/​ new-​transatlantic-​agenda/​.

1.1.2

EU Legislation

Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association citation the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, with regard to the adoption of provisions on the coordination of social security systems, [2010] OJ L 306/​1. Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Association Council set up by the Euro-​ Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​Mediterranean Agreement, [2010] OJ L 306/​8. Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​ Mediterranean Agreement, [2010] OJ L 306/​14. Council Decision of 21 October 2010 on the position to be taken by the European Union within the Association Council set up by the Euro-​Mediterranean

Bibliography

325

Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Association Council set up by the Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Euro-​Mediterranean Agreement, [2010] OJ L 306/​21. Council Decision of 21 October 2010 on the position to be taken by the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, of … with regard to the provisions on the coordination of social security systems contained in the Stabilisation and Association Agreement, [2010] OJ L 306/​28. Council Decision of 21 October 2010 on the position to be taken by the European Union within the Stabilisation and Association Council set up by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Croatia, of the other part, with regard to the adoption of provisions on the coordination of social security systems, 2010/​702/​EU, [2010] OJ L 306/​35. Council Decision of 6 June 2011 on the position to be taken by the European Union within the eea Joint Committee concerning an amendment to Annex vi (Social Security) and Protocol 37 to the eea Agreement, [2011] OJ L 182/​12. Council Decision 2011/​863/​EU of 16 December 2011 on the position to be taken by the European Union in the Joint Committee established under the Agreement between the European Union and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons as regards the replacement of Annex ii to that Agreement on the co-​ordination of social security schemes, [2011] OJ L 341/​1. Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​Turkey Association Council of

326 Bibliography … with regard to the adoption of provisions on the coordination of social security systems, [2012] OJ L 340/​19. Council Decision of 6 December 2012 on the position to be taken by the European Union within the Cooperation Committee set up by the Agreement on Cooperation and Customs Union between the European Community and its Member States, of the one part, and the Republic of San Marino, of the other part, with regard to the adoption of provisions on the coordination of social security systems, together with the Draft Decision No … /​… of the EU-​San Marino Cooperation Committee of … with regard to the adoption of provisions on the coordination of social security systems (‘the Draft Decision’) [2012] OJ L 340/​13. Council Decision of 28 January 2014 authorising Member States to ratify in the interests of the European Union, the Convention concerning decent work for domestic workers, 2011, of the International Labour Organisation (Convention No 189), 2014/​ 51/​EU, [2014] OJ L 32/​32. Council Decision of 17 March 2014, 2014/​295/​EU, [2014] OJ L 161/​1. Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, 2014/​492/​EU, [2014] OJ L 260/​1. Council Decision of 16 June 2014 on the signing, on behalf of the European Union, and provisional application of the Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Georgia, of the other part, 2014/​494/​EU, [2014] OJ L 261/​1. Council Decision of 23 June 2014, 2014/​668, [2014] OJ L 278/​1. Council Decision of 23 June 2014, 2014/​669, [2014] OJ L 278/​6. Council Directive of 19 December 1978 on the progressive implementation of the principle of equal treatment for men and women in matters of social security, [1979] OJ L 6/​24. Council Directive 98/​49/​EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-​employed persons moving within the Community, [1998] OJ L 209/​46. Council Directive 2003/​86/​EC of 22 September 2003 on the right to family reunification, [2003] OJ L 251/​12. Council Directive 2003/​109/​EC of 25 November 2003 concerning the status of third-​ country nationals who are long-​term residents, [2004] OJ L 16/​44. Council Directive 2004/​83/​EC of 29 April 2004 on minimum standards for the qualification and status of third country nationals or stateless persons as refugees or as persons who otherwise need international protection and the content of the protection granted, [2004] OJ L 304/​12.

Bibliography

327

Council Directive 2004/​114/​EC of 13 December 2004 on the conditions of admission of third country nationals for the purpose of studies, pupil exchange, unremunerated training, or voluntary service, [2004] OJ L 375/​12. Council Directive 2005/​71/​EC of 12 October 2005 on a specific procedure admitting third-​country nationals for purposes of scientific research, [2005] OJ L 289/​15. Council Directive 2009/​50/​EC of 25 May 2009 on the conditions of entry and residence of third-​country nationals for the purpose of highly qualified employment, [2009] OJ L 155/​17. Council Regulation No 3 on social security for migrant workers, [1958] OJ L 30/​561. Council Regulation No 4 fixing the implementing procedure and supplementing provisions of Regulation No 3, [1958] OJ L 30/​597. Council Regulation (eec) No 348/​81 of 20 January 1981 on common rules for imports of whales or other cetacean products, [1981] OJ L 39/​1. Council Regulation (eec) No 2195/​91 of 25 June 1991 amending Regulation (eec) No 1408/​71 on the application of social security schemes to employed persons, self-​employed persons and members of their families moving within the Community and Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, [1991] OJ L 206/​2. Council Regulation (eec) No 1408/​71 of 14 June 1971 on the application of social security schemes to employed persons, to self-​employed persons and to members of their families moving within the Community, consolidated version, [1997] OJ L 28/​1. Council Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, consolidated version, [1997] OJ L 28/​1. Council Regulation (EC) No 1030/​2002 of 13 June 2002 laying down a uniform format for residence permits for third-​country nationals, [2002] OJ L 157/​1. Council Regulation (EU) No 2010/​1259/​EU of 20 Dec. 2010 implementing enhanced cooperation in the area of the law applicable to divorce and legal separation, [2010] OJ L 343/​2. Council Regulation (EU) No 1260/​2012 of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection with regard to the applicable translation arrangements, [2012] OJ L 361/​89. Council Regulation (EU) No 2016/​1103 of 24 June 2016 implementing enhanced cooperation in the area of jurisdiction, applicable law and the recognition and enforcement of decisions in matters of matrimonial property regimes, [2016] OJ L 183/​1. Council Regulation (EU) No 2017/​1939 of 12 October 2017 implementing enhanced cooperation on the establishment of the European Public Prosecutor’s Office (‘the eppo’), [2017] OJ L 283/​1. Directive 95/​46/​EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, [1995] OJ L 281/​31.

328 Bibliography Directive 96/​71/​EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services, [1997] OJ L 18/​1. Directive 2004/​38/​EC of the European Parliament and of the Council of 29 April 2004 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States amending Regulation (eec) No 1612/​68 and repealing Directives 64/​221/​EEC, 68/​360/​EEC, 72/​194/​EEC, 73/​148/​EEC, 75/​34/​EEC, 75/​35/​EEC, 90/​364/​EEC, 90/​365/​EEC and 93/​96/​EEC, [2004] OJ L 158/​77. Directive 2011/​51/​EU of the European Parliament and of the Council of 11 May 2011 amending Council Directive 2003/​109/​EC to extend its scope to beneficiaries of international protection, [2011] OJ L 132/​1. Directive 2011/​95/​EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-​country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted, [2011] OJ L 337/​9. Directive 2011/​98/​EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and a common set of rights for third-​country workers legally residing in a Member State, [2011] OJ L 343/​1. Directive 2014/​36/​EU of the European Parliament and of the Council of 26 February 2014 on the conditions of entry and residence of third-​country nationals for the purpose of employment as seasonal workers, [2014] OJ L 94/​375. Directive 2014/​50/​EU of the European Parliament and of the Council of 16 April 2014 on minimum requirements for enhancing worker mobility between Member States by improving the acquisition and preservation of supplementary pension rights, [2014] OJ L 128/​1. Directive 2014/​66/​EU of the European Parliament and of the Council of 15 May 2014 on the conditions of entry and residence of third-​country nationals in the framework of an intra-​corporate transfer, [2014] OJ L 157/​1. Directive 2016/​801/​EU of the European Parliament and of the Council of 11 May 2016 on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, training, voluntary service, pupil exchange schemes or education projects and au pairing, [2016] OJ L 132/​21. Explanations relating to the Charter of Fundamental Rights, [2007] OJ C 303/​17. Regulation (EC) No 859/​2003 of 14 May 2003 extending the provisions of Regulation (eec) No 1408/​71 and Regulation (eec) No 574/​72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality, [2003] OJ L 124/​1.

Bibliography

329

Regulation (EC) No 883/​2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, [2004] OJ L 166/​1. Commission Regulation (EC) No 8/​2008 of 11 December 2007 amending Council Regulation (eec) No 3922/​91 as regards common technical requirements and administrative procedures applicable to commercial transportation by aeroplane, [2008] OJ L 10/​1. Regulation (EC) No 987/​2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/​2004, [2009] OJ L 284/​1. Regulation (EU) No 1231/​2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/​2004 and Regulation (EC) No 987/​2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality, [2010] OJ L 344/​1. Regulation (EU) No 465/​2012 of the European Parliament and of the Council of 22 May 2012 amending Regulation (EC) No 883/​2004 on the coordination of social security systems and Regulation (EC) No 987/​2009 laying down the procedure for implementing Regulation (EC) No 883/​2004, [2012] OJ L 149/​4. Regulation (EU) No 1257/​2012 of the European Parliament and of the Council of 17 December 2012 implementing enhanced cooperation in the area of the creation of unitary patent protection, [2012] OJ L 361/​1. Regulation (EU) 2016/​679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/​46/​EC (General Data Protection), [2016] OJ L 119/​1. Treaty (signed on 12 June 1985 between the Kingdom of Belgium, the Kingdom of Denmark, the Federal Republic of Germany, the Hellenic Republic, the French Republic, Ireland, the Italian Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands, the United Kingdom of Great Britain and Northern Ireland (Member States of the European Communities) and the Kingdom of Spain and the Portuguese Republic concerning the accession of the Kingdom of Spain and the Portuguese Republic to the European Economic Community and to the European Atomic Energy Community, [1985] OJ L 302/​9.

1.1.3

EU Documents

Administrative Commission, ‘Recommendation No 22 of 18 June 2003 concerning the Gottardo judgment, according to which the advantages enjoyed by a State's own nationals under a bilateral convention on social security with a non-​member country must also be granted to workers who are nationals of other Member States’, [2003] OJ L 326/​35.

330 Bibliography Administrative Commission, ‘Decision No H6 of 16 December 2010 concerning the application of certain principles regarding the aggregation of periods under Article 6 of Regulation (EC) No 883/​2004 on the coordination of social security systems’, [2011] OJ C 45/​4. Administrative Commission for the Coordination of Social Security Systems, ‘Decision No A2 of 12 June 2009 concerning the interpretation of Article 12 of Regulation (EC) No 883/​2004 of the European Parliament and of the Council on the legislation applicable to posted workers and self-​employed workers temporarily working outside the competent State’, [2010] OJ C 106/​5. Administrative Commission for the Coordination of Social Security Systems, ‘Main conclusions of the 348th meeting of the Administrative Commission’, [2016] AC 608/​16. European Economic and Social Committee, ‘Coordination of social security schemes between the European Union and Euromed countries. Study’ (European Union 2016). European Commission ‘Immigration and Asylum Policies’ (Communication) com (1994) 23. European Commission, ‘Wider Europe-​Neighbourhood: A New Framework for Relations with our Eastern and Southern Neighbours’ (Communication) com (2003) 104 final. European Commission, ‘15th EU Summit:  Road Map For the Common Economic Space-​Building Blocks For Sustained Economic Growth’, Rome Summit, November 2003. Available at https://​ec.europa.eu/​research/​iscp/​pdf/​policy/​russia_​eu_​four_​ common_​spaces-​%20roadmap_​en.pdf. European Commission, ‘An EU-​India Strategic Partnership’ (Communication) com (2004) 0430 final. European Commission, ‘Policy plan on legal migration’ (Communication) com (2005) 669 final. European Commission, ‘Withdrawal of Commission proposals following screening for their general relevance, their impact on competitiveness and other aspects’, [2006] OJ C 64/​3. European Commission, Press Release IP/​07/​1575, ‘Making Europe More Attractive to Highly Skilled Migrants and Increasing the Protection of Lawfully Residing and Working Migrants’. European Commission, ‘On circular migration and mobility partnerships between the European Union and third countries’ (Communication) com (2007) 248 final. European Commission, ‘Europe 2020: a strategy for smart, sustainable and inclusive growth’ (Communication) com (2010) 2020 final. European Commission, ‘The Global Approach to Migration and Mobility’ (gamm) (Communication) com (2011) 743 final.

Bibliography

331

European Commission, ‘Communication on migration’ (Communication) com (2011) 248 final. European Commission, ‘An Agenda for Adequate, Safe and Sustainable Pensions’ (White Paper) com (2012) 55 final. European Commission, ‘The External Dimension of EU Social Security Coordination’ (Communication) com (2012) 153 final. European Commission, ‘Draft Agenda of the 333rd meeting of the Administrative Commission’, [2012] AC 475/​12. European Commission, ‘Obstacles to access by Andorra, Monaco and San Marino to the EU’s Internal Market and Cooperation in other Areas Accompanying the document Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on EU Relations with the Principality of Andorra, the Principality of Monaco and the Republic of San Marino for Options for Closer Integration with the EU’ (Commission Staff Working Paper) swd (2012) 388 final. European Commission, ‘Commission Staff working document-​impact assessment accompanying the document Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing’, [2013] swd (2013) 77 final. European Commission, ‘Maximising the Development Impact of Migration:  the EU contribution for the UN High-​level Dialogue and next steps towards broadening the development-​migration nexus’ (Communication) com (2013) 292 final. European Commission, ‘EU Relations with the Principality of Andorra, the Principality of Monaco and the Republic of San Marino: Options for their participation in the Internal Market’ (Report) com (2013) 793 final. European Commission, ‘An open and secure Europe: making it happen’ (Communication) com (2014) 154 final. European Commission, Press Release IP/​16/​2041, ‘Delivering the European Agenda on Migration: Commission presents Action Plan on Integration and reforms 'Blue Card' scheme for highly skilled workers from outside the EU’. European Commission, ‘Commission contribution to the EU Leaders’ thematic debate on a way forward on the external and internal dimension of migration policy’ (Communication) com (2017) 820 final. European Commission (European Political Strategy Center), ‘10 Trends Shaping Migration’, 2017. European Council, ‘Presidency Conclusions’, Tampere Summit, October 1999. European Parliament, ‘Resolution on the Situation of Fundamental Rights in the European Union 2004–​2008’, INI/​2007/​2145.

332 Bibliography European Parliament, ‘Resolution of 12 April 2016 on the situation in the Mediterranean and the need for a holistic EU approach to migration’, INI/​2015/​2095. European Parliament, ‘Posting of Workers Directive-​current situation and challenges’ (Study for the empl Committee) IP/​A/​EMPL/​2016-​07. Council of the EU, Press Release IP/​11984/​05, ‘The India-​EU Strategic Partnership Joint Action Plan’. Council of the EU, ‘European pact on immigration and asylum’, ini 13440/​08. Council of the EU, ‘The Stockholm Programme –​An open and secure Europe serving and protecting the citizen’, ini 5731/​10. Council of the EU, Press Release PRES10546/​10, ‘Joint Statement on the Partnership for Modernisation’. Council of the EU, ‘Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of seasonal employment’, INI 2010/​0210(COD). Council of the EU, Press Release ST16972/​14, ‘Council adopts mandate to negotiate association agreement(s) with Andorra, Monaco and San Marino’. Council of the EU, Press Release PRES6338/​14, ‘Council adopts intra-​corporate transferees directive’. Council of the EU, Press Release IP/​299/​15, ‘EU-​Turkey Association Council’ . Council of the EU, Press Release PRES/​2001/​451, ‘2392nd Council Meeting on Employment and Social Policy’. Council of the EU, Press Release 116/​19, ‘Council conclusions on EU relations with the Swiss Confederation’ . Proposal for a Council Regulation (eec) implementing within the European Economic Community Decision No 3/​80 of the eec-​Turkey Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families, [1983] OJ C 110/​1. Amended proposal for a Council Regulation (EC) amending Regulation (eec) No 1408/​71 on the application of social security schemes to employed persons, to self-​ employed persons and to members of their families moving within the Community, Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, Regulation (eec) No 1247/​92 amending Regulation (eec) No 1408/​71 and Regulation (eec) No 1945/​93 amending Regulation (eec) No 1247/​92, [1995] OJ C 242/​7. Proposal for a Council Regulation (eec) amending Regulation (eec) No 1408/​71 on the application of social security schemes to employed persons, self-​employed persons and to members of their families moving within the Community and Regulation (eec) No 574/​72 laying down the procedure for implementing Regulation (eec) No 1408/​71, [1996] com (1996) 0318 final.

Bibliography

333

Proposal for a Council Regulation (EC) amending Regulation (eec) No 1408/​71 as regards its extension to nationals of third countries, [1998] OJ C 6/​15 . Proposal for a Council Regulation (EC) on coordination of social security systems, [1999] OJ C 38/​1010. Proposal for a Council Directive concerning the status of third-​country nationals who are long-​term residents, [2001] com (2001) 127 final. Proposal for a Council Directive on the conditions of entry and residence for the purpose of paid employment and self-​employment activities, [2001] com (2001) 386 final. Proposal for a Council Directive on minimum standards for the qualification and status of third country nationals and stateless persons as refugees or as persons who otherwise need international protection, [2001] com (2001) 510 final. Proposal for a Council Regulation extending the provisions of Regulation (eec) No 1408/​71 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality, [2002] OJ C 126/​388. Proposal for a Council Directive on a single application procedure for a single permit for third-​country nationals to reside and work in the territory of a Member State and a common set of rights for third-​country workers legally residing in a Member State, [2007] com (2007) 638 final. Proposal for a Council Directive on the Conditions for Entry and Residence of Third-​ Country Nationals for the Purposes of Highly Qualified Employment: Summary of Impact Assessment, [2007] sec (2007) 1382 final. Proposal for a Council Directive implementing enhanced cooperation in the area of financial transaction tax, [2013] com (2013) 071 final. Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of research, studies, pupil exchange, remunerated and unremunerated training, voluntary service and au pairing [Re-​cast], [2013] com (2013) 151 final. Proposal for a Directive of the European Parliament and the Council on the conditions of entry and residence of third-​country nationals for the purposes of employment as seasonal workers, [2014] OJ L 94/​375. Proposal for a Directive of the European Parliament and of the Council on the conditions of entry and residence of third-​country nationals for the purposes of highly skilled employment, [2016] com (2016) 378 final. Proposal for a Interinstitutional Proclamation on the European Pillar of Social Rights, [2017] com (2017) 251 final. Barcelona Declaration adopted at the Euro-​Mediterranean Conference, 27–​28 November 1995. Available at http://​www.eeas.europa.eu/​euromed/​docs/​bd_​en.pdf. Joint Declaration of the Prague Eastern Partnership Summit, Prague, 7 May 2009. Available at http://​www.consilium.europa.eu/media/31797/2009_eap_declaration.pdf.

334 Bibliography 1.1.4

EU Case Law and Opinions of Advocate-​Generals

Case C-​26/​62 Van Gend & Loos v Administratie der Belastingen, ECLI:EU:C:1963:1. Case C-​75/​63 Unger v Bedrijfsvereniging voor Detailhandel en Ambachten, ECLI:EU:C:1964:19. C-​44/​65 Hessische Knappschaft v Maison Singer et fils, ECLI:EU:C:1965:122. Case C-​22/​70 Commission v Council, ECLI:EU:C:1971:32. Opinion of Advocate General Roemer in Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:54. Case C-​82/​72 Walder v Soziale Verzekeringsbank, ECLI:EU:C:1973:62. Case C-​181/​73 Haegemann v Belgian State, ECLI:EU:C:1974:41. Joined cases C-​3/​76, 4/​76 & 6/​76 Cornelis Kramer and Others, ECLI:EU:C:1976:114. Case C-​40/​76 Kermaschek v Bundesanstalt für Arbeit, ECLI:EU:C:1976:157. Case C-​76/​76 Di Paolo, ECLI:EU:C:1977:32. Opinion 1/​76 Draft Agreement establishing a European laying-​up fund for inland waterway vessels, ECLI:EU:C:1977:63. Case C-​102/​76 Perenboom, ECLI:EU:C:1977:71. Case C-​115/​77 Laumann, ECLI:EU:C:1978:71. Case C-​10/​78 Belbouab, ECLI:EU:C:1978:181. Case C-​99/​80 Galinsky, ECLI:EU:C:1981:81. Case C-​270/​80 Polydor and Others v Harlequin and Others, ECLI:EU:C:1982:43. Case C-​139/​82 Piscitello, ECLI:EU:C:1983:126. Case C-​171/​82 Valentini, ECLI:EU:C:1983:189. Case C-​238/​83 Meade, ECLI:EU:C:1984:250. Case C-​302/​84 Ten Holder v Nieuwe Algemene Bedrijfsvereniging, ECLI:EU:C:1986:242. Case C-​12/​86 Demirel v Stadt Schwäbisch Gmünd, ECLI:EU:C:1987:400. Case C-​20/​85 Roviello, ECLI:EU:C:1988:283 . Case C-​165/​87 Commission v Council, ECLI:EU:C:1988:458. Case C-​359/​87 Pietro Pinna v Caisse d'allocations familiales de la Savoie, ECLI:EU:C:1989:107. Case C-​2/​89 Bestuur van de Sociale Verzekeringsbank v Kits van Heijningen, ECLI:EU:C:1990:183. Case C-​192/​89 Sevince, ECLI:EU:C:1990:322. Case C-​18/​90 Office national de l'emploi v Kziber, ECLI:EU:C:1991:36. Case C-​227/​89 Rönfeldt v Bundesversicherungsanstalt für Angestellte, ECLI:EU:C:1991:52. Case C-​300/​89 Commission v Council (Titanium Dioxide), ECLI:EU:C:1991:244. Case C-​196/​90 Fonds voor Arbeidsongevallen v De Paep, ECLI:EU:C:1991:381. Opinion 1/​91, ECLI:EU:C:1991:490. Case C-​155/​91 Commission v Council, ECLI:EU:C:1993:98. Opinion 2/​91 Convention No. 170 of the ILO, ECLI:EU:C:1993:106. Case C-​23/​92 Grana-​Novoa v Landesversicherungsanstalt Hessen, ECLI:EU:C:1993:339. Case C-​58/​93 Yousfi v Belgian State, ECLI:EU:C:1994:160.

Bibliography

335

Case C-​103/​94 Krid v Caisse nationale d'assurance vieillesse des travailleurs salariés, ECLI:EU:C:1995:97. Case C-​475/​93 Thévenon and Stadt Speyer-​Sozialamt v Landesversicherungsanstalt Rheinland-​Pfalz, ECLI:EU:C:1995:371. Case C-​308/​93 Bestuur van de Sociale Verzekeringsbank v Cabarnis-​ Issarte, ECLI:EU:C:1996:169. Case C-​277/​94 Taflan-​Met, ECLI:EU:C:1996:315. Case C-​126/​95 Hallouzi-​ Choho v Bestuur van de Sociale Verzekeringsbank, ECLI:EU:C:1996:368. Joined Cases C-​245/​94 and C-​312/​94 Hoever and Zachow v Land Nordrhein-​Westfalen, ECLI:EU:C:1996:379. Case C-​268/​94 Portugal v Council, ECLI:EU:C:1996:461. Case C-​36/​96 Günaydin, ECLI:EU:C:1997:445. Case C-​113/​97 Babahenini v Belgian State, ECLI:EU:C:1998:13. Case C-​160/​96 Molenaar v Allgemeine Ortskrankenkasse Baden-​ Württemberg, ECLI:EU:C:1998:84. Case C-​113/​96 Gómez Rodríguez v Landesversicherungsanstalt Rheinprovinz, ECLI:EU:C:1998:203. Case C-​85/​96 Martinez Sala, ECLI:EU:C:1998:217. Case C-​35/​97 Commission v France, ECLI:EU:C:1998:431. Case C-​90/​97 Swaddling, ECLI:EU:C:1999:96. Case C-​262/​96 Sürül, ECLI:EU:C:1999:228. Case C-​307/​97 Saint-​Gobain ZN, ECLI:EU:C:1999:438. Case C-​179/​98 Belgian State v Mesbah, ECLI:EU:C:1999:549. Case C-​202/​97 FTS, ECLI:EU:C:2000:75. Case C-​37/​98 Savas, ECLI:EU:C:2000:224. Case C-​75/​99 Thelen, ECLI:EU:C:2000:608. Case C-​135/​99 Elsen, ECLI:EU:C:2000:647. Case C-​36/​98 Spain v Council, ECLI:EU:C:2001:64. Case C-​368/​98 Vanbraekel and Others, ECLI:EU:C:2001:400. Joined Cases C-​95/​99 to C-​98/​99 and C-​180/​99 Khalil, ECLI:EU:C:2001:532. Case C-​189/​00 Ruhr, ECLI:EU:C:2001:583. Opinion 2/​00 Cartagena Protocol, ECLI:EU:C:2001:664. Case C-​55/​00 Elide Gottardo v Istituto nazionale della previdenza sociale (INPS), ECLI:ECLI:EU:C:2002:16. Case C-​277/​99 Kaske, ECLI:EU:C:2002:74. Case C-​28/​00 Kauer, ECLI:EU:C:2002:82 . Joined Cases C-​393/​99 and C-​394/​99 Hervein and Others, ECLI:EU:C:2002:182. Case C-​471/​99 Martínez Domínguez and Others, ECLI:EU:C:2002:523. Case C-​23/​02 Alami, ECLI:EU:C:2003:89.

336 Bibliography Case C-​452/​01 Ospelt and Schlössle Weissenberg, ECLI:EU:C:2003:346. Case C-​317/​01 Abatay, ECLI:EU:C:2003:572. Case C-​56/​01 Inizan, ECLI:EU:C:2003:578. Case C-​373/​02 Öztürk, ECLI:EU:C:2004:232. Case C-​338/​01 Commission v Council (Recovery of Indirect Taxes), ECLI:EU:C:2004:253. Case C-​372/​02 Adanez-​Vega, ECLI:EU:C:2004:705. Case C-​145/​03 Keller, ECLI:EU:C:2005:211. Case C-​286/​03 Hosse, ECLI:EU:C:2006:125. Case C-​97/​05 Gattoussi, ECLI:EU:C:2006:243. Case C-​372/​04 Watts, ECLI:EU:C:2006:325. Case C-​336/​05 Echouikh, ECLI:EU:C:2006:394. Case C-​406/​04 De Cuyper, ECLI:EU:C:2006:491. Case C205/​05 Nemec, ECLI:EU:C:2006:705. Case C-​276/​06 El Youssfi, ECLI:EU:C:2007:215. Case C-​287/​05 Hendrix, ECLI:EU:C:2007:494. Case C-​294/​06 Payir and Others, ECLI:EU:C:2008:36. Case C-​507/​06 Klöppel, ECLI:EU:C:2008:110. Case C-​331/​06 Chuck, ECLI:EU:C :2008 :188. Case C-​91/​05 Commission v Council, ECLI:EU:C:2008:288. Case C-​352/​06 Bosmann, ECLI:EU:C:2008:290. Joined Cases C-​ 402/​ 05 P and C-​ 415/​ 05 P Kadi v Council and Commission, ECLI:EU:C:2008:461. Case C-​127/​08 Metock and Others, ECLI:EU:C:2008:449. Case C-​228/​07 Petersen, ECLI:EU:C:2008:494. Case C-​155/​07 European Parliament v Council, ECLI:EU:C:2008:605. Case C-​351/​08 Grimme, ECLI:EU:C:2009:697. Opinion 1/​08 Agreements modifying the Schedules of Specific Commitments under the GATS, ECLI:EU:C:2009:739. Case C-​16/​09 Schwemmer, ECLI:EU:C:2010:605. Case C-​247/​09 Xhymshiti, ECLI:EU:C:2010:698. Case C-​485/​07 Akdas and Others, ECLI:EU:C:2011:346. Case C-​506/​10 Graf and Engel, ECLI:EU:C:2011:643. Case C-​257/​10 Bergström, ECLI:EU:C:2011:839. Case C-​411/​10 N.S., ECLI:EU:C:2011:865. Case C-​571/​10 Kamberaj, ECLI:EU:C:2012:233. Joined Case C-​611/​10 and C-​612/​10 Hudzinski and Wawrzyniak, ECLI:EU:C:2012:339. Case C-​356/​12 Glatzel, ECLI :EU :C :2012:350. Case C-​15/​11 Sommer, ECLI:EU:C:2012:371. Case C-​130/​10 Parliament v Council, ECLI:EU:C:2:2012:472. Case C-​370/​12 Pringle, ECLI:EU:C:2012:756.

Bibliography

337

Case C-​617/​10 Åkerberg Fransson, ECLI:EU:C:2013:105. Joined Case C-​274/​11 & C-​275/​11 Spain and Italy v Council, ECLI:EU:C:2013:240. Case C-​45/​12 Hadj Ahmed, ECLI:EU:C:2013:390. Case C-​414/​11 Daiichi Sankyo and Sanofi-​Aventis Deutschland, ECLI:EU:2013:520. Case C-​140/​12 Brey, EUCLI:EU:C:2013:565. Case C-​216/​12 Hliddal and Bornand, ECLI:EU:C:2013:568. Case C-​431/​11 United Kingdom v Council, ECLI:EU:C:2013:589. Case C176/​12 Association de mediation sociale, ECLI:EU:C:2014:2. Case C-​656/​11 United Kingdom v Council, ECLI:EU:C:2014:97. Case C-​250/​13 Wagener, ECLI:EU:C:2014:278. Opinion of Advocate General Wathelet in Case C-​333/​13 Dano, ECLI:EU:C:2014 :341. Case C-​377/​12 Commission v Council, ECLI:EU:C:2014:1903 . Opinion of Advocate General Kokott in Case C-​81/​13 United Kingdom v Council, ECLI:EU:C:2014:2114. Case C-​491/​13 Ben Alaya, ECLI:EU:C:2014:2187. Case C-​394/​13 B, ECLI:EU:C:2014:2199. Case C-​399/​12 Germany v Council, ECLI:EU:C:2014:2258. Case C-​311/​13 Tümer, ECLI:EU:C:2014:2337. Case C-​333/​13 Dano, ECLI:EU:C:2014:2358. Case C-​81/​13 United Kingdom v Council, ECLI:EU:C:2014:2449. Case C-​171/​13 Demirci and others, ECLI:EU:C:2015:8. Case C-​401/​13 Balazs, ECLI:EU:C:2015:26. Case C-​382/​13 Franzen and Others, ECLI:EU:C:2015:261. Case C-​425/​13 Commission v Council, ECLI:EU:C:2015:483. Case C-​67/​14 Alimanovic, ECLI:EU:C:2015:597. Case C-​453/​14 Knauer, ECLI:EU:C:2016:37. Case C-​299/​14 Garcia-​Nieto, ECLI:EU:C:2016:114. Opinion of Advocate General Wahl in Joined Cases C-​8/​15 P, C-​9/​15 P and C-​10/​15 P Ledra Advertising v Commission and ECB, ECLI:EU:C:2016:290. Case C-​308/​14 Commission v UK, ECLI:EU:C:2016:436. Case C-​182/​15 Petruhhin, ECLI:EU:C:2016:630. Opinion of Advocate General Wahl in Opinion 3/​ 15, Marrakesh Treaty, ECLI:EU:C:2016:657. Joined Cases C-​8/​15 P, C-​9/​15 P and C-​10/​15 P Ledra Advertising v Commission and ECB, ECLI:EU:C:2016:701. Opinion of Advocate General Sharpston in Opinion 2/​15, EU-​Singapore Free Trade Agreement, ECLI:EU:C:2016:992. Opinion of Advocate General Mengozzi in Case C-​638/​16 PPU, X, X v État belge, ECLI:EU:C:2017:93. Opinion 3/​15 Marrakesh Treaty, ECLI:EU:C:2017:114.

338 Bibliography Opinion 2/​15 EU-​Singapore Free Trade Agreement, ECLI:EU:C:2017:376. Case C-​449/​16 Martinez Silva, ECLI:EU:C :2017 :485. Case C-​45/​17 Jahin, ECLI:EU:C:2018:18. Case C-​244/​17 Commission v Council, ECLI:C:2018:662. Opinion of Advocate General Wahl in Case C-​ 477/​ 17 Balandin and Others, ECLI:EU:C:2018:783. Case C-​477/​17 Raad van bestuur van de Sociale verzekeringsbank v D. Balandin and Others, ECLI: EU: C:2019:60.

1.1.5

EU Statistical Data

Eurostat’s database. Available at:  http://ec.europa.eu/eurostat/tgm/​ table.do?tab=table&init=1&language=fr&pcode=tps00176&plugin=1.

1.2  National Legislation, Documents and Case Law Albania

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, [2009] OJ L 107/​166.



Algeria



Belgium National Legislation



Agreements and Administrative Arrangements

Euro-​Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the People’s Democratic Republic of Algeria, of the other part, [2005] OJ L 265/​1.

Loi spéciale du 6 janvier 2014 relative à la sixième réforme de l’État, M.B., 31 January 2014. Décret spécial du 3 avril 2014 relatif aux compétences de la Communauté française dont l’exercice est transféré à la Région wallonne et à la Commission communautaire française, M.B., 25 June 2014. Accord de coopération entre la Communauté flamande, la Région wallonne, la Commission communautaire commune et la Communauté germanophone portant sur les facteurs de rattachement, la gestion des charges du passé, l’échange des données en matière de prestations familiales et les modalités concernant le transfert de compétence entre caisses d’allocations familiales, M.B., 26 January 2018.

Agreement between the United States of America and the Kingdom of Belgium on Social Security, 19 February 1982.

Bibliography

339

Additional protocol between the United States of America and the Kingdom of Belgium, 23 November 1982. Administrative Agreement for the implementation of the Agreement between the United States of America and the Kingdom of Belgium on social security, 23 November 1982. Agreement on social security between the Kingdom of Belgium and the Republic of India. Belgian Law Gazette, 21 August 2009. Administrative arrangement concerning the implementation of the agreement between the Kingdom of Belgium and the Republic of India on social security. Belgian Law Gazette, 31 August 2009. Convention générale sur la sécurité sociale entre le Royaume de Belgique et la République de Turquie, 11 Avril 2014.



Bosnia and Herzegovina



Egypt



France



Germany Agreements and administrative arrangements

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Bosnia and Herzegovina, of the other part, [2015] OJ L 164/​2.

Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Arab Republic of Egypt, of the other part, [2004] OJ L 304/​1.

Convention générale du 31 mars 1948 entre la France et l’Italie tendant à coordonner l’application aux ressortissants des deux pays de la législation française sur la Sécurité Sociale et de la législation italienne sur les Assurances sociales et les prestations familiales.

Gesetz zu dem Abkommen vom 30 April 1964 zwischen der Bundesrepublik Deutschland und der Republik Türkei über Soziale Sicherheit, 13.09.1965, Bundersgesetzblatt, Teil ii, Z1998A, p.1169. Agreement between the United States of America and the Federal Republic of Germany on Social Security, 7 January 1976. Administrative Agreement for the implementation of the Agreement between the United States of America and the Federal Republic of Germany on social security, 21 June 1978. Supplementary Agreement between the United States of America and the Federal Republic of Germany, 2 October 1986.

340 Bibliography Second Supplementary Agreement between the United States of America and the Federal Republic of Germany, 6 March 1995. Agreement between the Republic of India and the Federal Republic of Germany on Social Insurance, 8 October 2008. Agreement of 11 October 2011 between the Federal Republic of Germany and the Republic of India on Social Security, Bundesgesetzblatt Jahrgang 2012 Teil II Nr.19, ausgegeben zu Bonn am 12 Juni 2012.



Statistical Data



India National Legislation



Agreements and Administrative Arrangements

Federal Statistics Office from Germany. Available at https://​www.destatis.de/​EN/​ FactsFigures/​InFocus/​Population/​Foreigners.html.

Employees’ Provident Funds and Miscellaneous Provisions Act 1952. Employee’s Pension Scheme 1995. Notification amending the Employees Provident Fund & Miscellaneous Provision Act 1952, Official Gazette, New Delhi, 01.10.2008, available at http://​www.epfindia.com/​ site_​docs/​PDFs/​Circulars/​Y2009-​2010/​notification_​schemes.pdf.

Agreement between the Republic of India and the Federal Republic of Germany on Social Insurance, 8 October 2008. Administrative arrangement between the Government of the Republic of India and the Government of the Federal Republic of Germany for the implementation of the Agreement of 8 October 2008 on social insurance. Agreement on social security between the Kingdom of Belgium and the Republic of India, Belgian Law Gazette, 21 August 2009. Administrative arrangement concerning the implementation of the agreement between the Kingdom of Belgium and the Republic of India on social security. Belgian Law Gazette, 31 August 2009. Agreement between the Republic of India and the Kingdom of the Netherlands, 22 October 2009. Administrative Agreement for the implementation of the Agreement on Social Security between the Kingdom of the Netherlands and the Republic of India, Tractatenblad, 2009, 213. Agreement of 11 October 2011 between the Federal Republic of Germany and the Republic of India on Social Security, Bundesgesetzblatt Jahrgang 2012 Teil II Nr.19, ausgegeben zu Bonn am 12 Juni 2012.

Bibliography



Official documents



Italy



Israel



Jordan



Kosovo



Lebanon



Macedonia

341

Employees’ Provident Fund Organisation (Ministry of Labour & Employment, Govt. Of India), Note on the Compliance in respect of International Workers, 25 May 2012 . L.M. Singhvi et al. (Eds.), ‘Report of the High Level Committee on the Indian Diaspora’ (New Delhi, Ministry of External Affairs 2001). Government of India Cabinet, Press Information Bureau, 22 June 2017, available at http://​pib.nic.in/​newsite/​PrintRelease.aspx?relid=165848.

Convention générale du 31 mars 1948 entre la France et l’Italie tendant à coordonner l’application aux ressortissants des deux pays de la législation française sur la Sécurité Sociale et de la législation italienne sur les Assurances sociales et les prestations familiales.

Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the State of Israel, of the other part, [2000] OJ L 147/​1.

Euro-​Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and the Hashemite Kingdom of Jordan, of the other part, [2002] OJ L 129/​1.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Kosovo, of the other part, [2016] OJ L 71/​3.

Euro-​Mediterranean Agreement establishing an Association between the European Community and its Member States, of the one part, and the Republic of Lebanon, of the other part, [2006] OJ L 143/​1.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the former Yugoslav Republic of Macedonia, of the other part, [2004] OJ L 84/​13.

342 Bibliography

Moldova



Montenegro



Morocco



The Netherlands National Legislation

Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Republic of Moldova, of the other part, [1998] OJ L 181/​3. Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and the Republic of Moldova, of the other part, [2014] OJ L 260/​1.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Montenegro, of the other part, Brussels, [2010] OJ L 108/​3.

Council Regulation (eec) No 2211/​78 of 26 September 1978 concerning the conclusion of the Cooperation Agreement between the European Economic Community and the Kingdom of Morocco, [1978] OJ L 264/​1. Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Kingdom of Morocco, of the other part, [2000] OJ L 70/​1.

Wet van 27 mei 1999, tot wijziging van de Ziektewet, de Wet op de arbeidsongeschiktheidsverzekering en enkele andere wetten in verband met de beperking van het exporteren van uitkeringen (Wet beperking export uitkeringen), Staatsblad van het Koninkrijk der Nederlanden 1999, 250. Wet van 29 maart 2012, houdende wijziging van enkele socialezekerheidswetten in verband met aanpassing van de hoogte van de uitkering aan het woonland (Wet woonlandbeginsel in de sociale zekerheid), Staatsblad van het Koninkrijk der Nederlanden 2012, 198. Wet van 19 juni 2014 tot wijziging van enkele socialezekerheidswetten in verband met een andere vormgeving van de exportbeperking in de Algemene Kinderbijslagwet en het regelen van overgangsrecht voor de situatie van opzegging of wijziging van een verdrag dan wel een daarmee gelijk te stellen situatie, Staatsblad van het Koninkrijk der Nederlanden 2014, 238. Regeling van de Minister van Sociale Zaken en Werkgelegenheid van 20 april 2012, IVV/​ OOG/​2012/​6311, houdende nadere regels in verband met aanpassing van de hoogte van de uitkering aan het woonland, 2012.

Bibliography

343

Regeling van de Minister van Sociale Zaken en Werkgelegenheid van 9 juni 2017, 2017-​0000094795, tot wijziging van de Regeling woonlandbeginsel in de sociale zekerheid 2012 in verband met de actualisering van de woonlandfactoren, 2017, 33538.



Agreements and Administrative Arrangements



Case Law



Russia



Serbia

Convention between the Kingdom of the Netherlands and the Republic of Turkey on Social Security, 5 April 1966. Agreement between the United States of America and the Kingdom of the Netherlands on Social Security, 8 December 1987. Protocol between the United States of America and the Kingdom of the Netherlands, 7 December 1989. Second Protocol between the United States of America and the Kingdom of the Netherlands, 30 August 2001. Agreement between the Republic of India and the Kingdom of the Netherlands, 22 October 2009. Administrative Agreement for the implementation of the Agreement on Social Security between the Kingdom of the Netherlands and the Republic of India, Tractatenblad, 2009, 213. Protocol tot wijziging van het Verdrag inzake sociale zekerheid tussen het Koninkrijk der Nerderlanden en de Republiek India en het Administratief Akkoord daarbij, ondertekend te New Delhi op 22 oktober 2009; ‘s-​Gravenhage, 27 juni 2017, Staten-​ Generaal, vergaderjaar 2017-​2018, 34 791, nr. 1.

CRvB 14 March 2003, RSV 2003/​114, also in AB 2003/​189 . CRvB 24 January 2001, AB 2001/​81.

Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and the Russia Federation, of the other part, [1997] OJ L 327/​3.

Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Serbia, of the other part, [2013] OJ L 278/​14.

344 Bibliography

Turkey National Legislation



Agreements and Administrative Arrangements



Tunisia



Ukraine



USA

Law No. 3201, 08.05.1985, T.C. Resmi Gazette 1985. Law No. 5510, 31.05.2006, T.C. Resmi Gazette 2006. Law No. 29116, 09.11.2014, T.C. Resmi Gazete 2014.

Agreement establishing an Association between the European Economic Community and Turkey [1964] OJ L 217. Convention between the Kingdom of the Netherlands and the Republic of Turkey on Social Security, 5 April 1966. Gesetz zu dem Abkommen vom 30 April 1964 zwischen der Bundesrepublik Deutschland und der Republik Türkei über Soziale Sicherheit, 13.09.1965, Bundersgesetzblatt, Teil II, Z1998A, p.1169. Additional Protocol and Financial Protocol signed in Brussels on 23 November 1970, annexed to the Agreement establishing the Association between the European Economic Community and Turkey and on measures to be taken for their entry into force, [1972] OJ L 293/​3. Convention générale sur la sécurité sociale entre le Royaume de Belgique et la République de Turquie, 11 Avril 2014.

Euro-​Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part, [1998] OJ L 097/​2.

Partnership and Cooperation Agreement between the European Communities and their Member States, of the one part, and Ukraine, of the other part, [1998] OJ L 333/​3. Association Agreement between the European Union and its Member States, of the one part, and Ukraine, of the other part, [2014] OJ L 161/​3.

Agreement between the United States of America and the Federal Republic of Germany on Social Security, 7 January 1976. Agreement between the United States of America and the Kingdom of Belgium on Social Security, 19 February 1982. Additional protocol between the United States of America and the Kingdom of Belgium, 23 November 1982.

Bibliography

345

Administrative Agreement for the implementation of the Agreement between the United States of America and the Kingdom of Belgium on social security, 23 November 1982. Supplementary Agreement between the United States of America and the Federal Republic of Germany, 2 October 1986. Agreement between the United States of America and the Kingdom of the Netherlands on Social Security, 8 December 1987. Protocol between the United States of America and the Kingdom of the Netherlands, 7 December 1989. Second Supplementary Agreement between the United States of America and the Federal Republic of Germany, 6 March 1995. Second Protocol between the United States of America and the Kingdom of the Netherlands, 30 August 2001. Declaration on U.S.-​ EC Relations, 1 December 1990, available at https://​ useu.usmission.gov/declaration-u-s-ec-relations/​.



UK

1.3 1.3.1

International Instruments and Case Law Council of Europe

UK Prime Minister’s letter to Donald Tusk triggering Article 50, 29 March 2017, available at https://​www.gov.uk/​government/​uploads/​system/​uploads/​attachment_​data/​file/​ 604079/​Prime_​Ministers_​letter_​to_​European_​Council_​President_​Donald_​Tusk.pdf . UK Prime Minister’s Commons statement to the European Parliament on triggering Article 50, 29 March 2017, available at https://​www.gov.uk/​government/​speeches/​ prime-​ministers-​commons-​statement-​on-​triggering-​article-​50.

European Interim Agreement on Social Security Schemes relating to Old Age, Invalidity and Survivors, Paris, 11 December 1953. European Interim Agreement on Social Security other than Schemes for Old Age, Invalidity and Survivors, Paris, 11 December 1953. European Convention on Social and Medical Assistance, Paris, 11 December 1953. European Convention on Establishment and Protocol thereto, Paris, 12 December 1955. European Social Charter, Turin, 18 October 1961. European Convention on Social Security, Paris, 14 December 1972. European Convention on the Legal Status of Migrant Workers, Strasbourg, 24 November 1977. European Code of Social Security (Revised), Rome, 6 November 1990. Additional Protocol to the European Social Charter Providing for a System of Collective Complaints, Strasbourg, 9 November 1995. European Social Charter (Revised), Strasbourg, 3 May 1996.

346 Bibliography Explanatory Report to the Protocol No 12 to the Convention for the Protection of Human Rights and Fundamental Freedoms, Rome, 4 November 2000. Council of Europe, Model Provisions For a Bilateral Social Security Agreement and Explanatory Report, SS-​AC(98).

1.3.1.1

Case law of the European Committee on Social Rights.

1.3.1.2

Case law of the ECtHR.

SAIGI-​Syndicat des Hauts Fonctionnaires v. France, Complaint No.29/​2005, European Committee on Social Rights, June 14 2005. International Federation of Human Rights Leagues (FIDH) v. France, Complaint No.14/​ 2003, European Committee on Social Rights, November 3 2004. Defence for Children International (DCI) v. Netherlands, Complaint No.47/​2008, European Committee on Social Rights, October 20 2009. Confédération Générale du Travail (CGT) v. France, Complaint No. 55/​2009, June 23 2010. Médecins du Monde-​International v. France, Complaint No.67/​2011, September 11 2012. Federation of employed pensioners of Greece (IKA-​ETAM) v. Greece, Complaint No.76/​ 2012, European Committee on Social Rights, December 7 2012. Pensioners’ Union of the Athens-​Piraeus Electric Railway (I.S.A.P.) v. Greece, Complaint No.78/​2012, December 7 2012. Swedish Trade Union Confederation (LO) and Swedish Confederation of Professional Employees (TCO) v. Sweden, Complaint No. 85/​2012, July 3 2013. European Committee of Social Rights, Conclusions iii, (Cyprus). European Committee of Social Rights, Conclusions iii, (Norway). European Committee of Social Rights, Conclusions iv, (Austria). European Committee of Social Rights, Conclusions iv, (Great Britain). European Committee of Social Rights, Conclusions vii (France). European Committee of Social Rights, Conclusions ix-​1, (Netherlands). European Committee of Social Rights, Conclusions xiii-​2, (Norway). European Committee of Social Rights, Conclusions xiii-​3 (Finland). European Committee of Social Rights, Conclusions xiii-​4 (Statement of Interpretation of Article 12). European Committee of Social Rights, Conclusions 2004 (Estonia). European Committee of Social Rights, Conclusions 2004 (Lithuania). European Committee of Social Rights, Conclusions 2006 (Statement of Interpretation of Article 12(4)).

Decision as to the admissibility of 3 October 1983, J.W. and E. W. v. the United Kingdom, Appl. 9776/​82. Decision as to the admissibility of 15 November 1983, Feldbrugge v. the Netherlands, Appl. 8562/​79.

Bibliography

347

Decision as to the admissibility of 15 November 1983, Deumeland v. Germany, Appl. 9384/​81 . Judgment of 27 March 1988, Petrovic v. Austria, Appl. 20458/​92. Decision as to the admissibility of 13 July 1988, Sture Stigson v. Sweden, Appl. 12264/​86. Judgment of 26 November 1992, Lombardo v. Italy, Appl. 11519/​85. Judgment of 16 September 1996, Gaygusuz v. Austria, Appl. 17371/​90. Judgment of 21 February 1997, Van Raalte v. the Netherlands, Appl. 20060/​92. Judgment of 2 May 1997, D. v. the United Kingdom, Appl. 30240/​96. Judgment of 27 March 1998, Petrovic v. Austria, Appl. 20458/​92. Decision as to the admissibility of 30 October 1998, N.A.D.C.  v.  Switzerland, Appl. 46553/​99. Decision as to the admissibility of 15 February 2000, S.C.C. v. Sweden, Appl. 9384/​81. Judgment 30 May 2000, Belvedere Alberghiera S.r.l. v. Italy, Appl.31524/​96. Judgment of 10 May 2001, Z and others v. the United Kingdom, Appl. 29392/​95. Decision as to the admissibility of 23 April 2002, Aleksandra Larioshina v. Russia, Appl. 56869/​00. Judgment of 30 September 2003, Koua Poirrez v. France, Appl. 40892/​98. Decision as to the admissibility of 9 December 2003, Meyne-​Moskalczuk v. the Netherlands, Appl. 53002/​99. Judgment of 12 October 2004, Kjartan Ásmundsson v. Iceland, Appl. 60669/​00. Decision as to the admissibility of 4 January 2005, Valentina Pentiacova and Others v. Moldova, Appl. 14462/​03. Decision as to the admissibility of 6 July 2005, Stec and others v. The United Kingdom, Appl. 65731/​01 and 65900/​01. Judgment of 25 October 2005, Niedzwiecki v. Germany, Appl. 58453/​00. Judgment of 25 October 2005, Okpisz v. Germany, Appl. 59140/​00. Judgment of 27 November 2007, Luczak v. Poland, Appl. 77782/​01. Judgment of 27 May 2008, N v. the United Kingdom, Appl. 26565/​05. Judgment of 18 February 2009, Andrejeva v. Latvia, Appl. 55707/​00. Judgment 28 April 2009, Rasmussen v. Poland, Appl. 38886/​05. Decision as to the admissibility of 18 June 2009, Antonina Dmitriyevna Budina v. Russia, Appl. 45603/​05. Judgment of 15 September 2009, Moskal v. Poland, Appl. 10373/​05. Judgment 28 April 2009, Rasmussen v. Poland, Appl. 38886/​05. Judgment of 22 October 2009, Apostolakis v. Greece, Appl. 39574/​07. Judgment of 22 December 2009, Sejdić and Finci v.  Bosnia and Herzegovina, Appl. 27996/​06 and 34836/​06. Judgment of 16 March 2010, Carson and others v. The United Kingdom, Appl. 42184/​05. Judgment of 11 February 2011, Andrle v. the Czech Republic, Appl. 6268/​08. Judgment of 3 March 2011, Klein v. Austria, Appl. 57028/​00.

348 Bibliography Judgment of 31 May 2011, Maggio and others v. Italy, Appl. 46286/​09, 52851/​08, 53727/​ 08, 54486/​08 and 56001/​08. Judgment 26 July 2011, Iwaszkiewicz v. Poland, Appl. 30614/​06. Judgment of 27 September 2011, Bah v. the United Kingdom, Appl. 56328/​0. Judgment of 25 October 2011, Valkov and others v. Bulgaria, Appl. Appl. 2033/​04, 19125/​ 04, 19475/​04, 19490/​04, 19495/​04, 19497/​04, 24729/​04, 171/​05 and 2041/​05. Judgment of 14 February 2012, B. v. the United Kingdom, Appl. 36571/​06. Judgment of 22 March 2012, Konstantin Markin v. Russia, Appl. 30078/​06. Decision as to the admissibility of 10 April 2012, Susan V. Richardson v. the United Kingdom, Appl. 26252/​08. Decision as to the admissibility of 23 October 2012, Ramaer and Van Willigen v.  the Netherlands, Appl. 34880/​12. Judgment of 8 January 2013, Efe v. Austria, Appl. 9134/​06. Judgment 24 October 2013, Damjanac v. Croatia, Appl. 52943/​10. Judgment of 7 November 2013, Pichkur v. Ukraine, Appl. 10441/​06. Judgment of 8 April 2014, Dhahbi v. Italy, Appl. 17120/​09. Judgment of 15 April 2014, Stefanetti and others v. Italy, Appl. 21838/​10, 21849/​10, 21852/​ 10, 21855/​10, 21860/​10, 21863/​10, 21869/​10 and 21870/​10. Judgment of 15 July 2014, Zornić v. Bosnia and Herzegovina, Appl. 3681/​06. Judgment of 2 February 2016, Di Trizio v. Switzerland, Appl. 7186/​09. Judgment of 9 June 2016, Pilav v. Bosnia and Herzegovina, Appl. 41939/​07. Judgment of 13 December 2016, Béláné Nagy v. Hungary, Appl. 53080/​13. Decision as to the admissibility of 28 February 2017, Gouri v. France, Appl. 41069/​11.

1.3.2

ilo Instruments

Founding Treaty of the ilo, Part xiii of the Treaty of Versailles of 28 June 1919. ilo Convention concerning Forced or Compulsory Labour, No. 29, 28 June 1930 . ilo Convention concerning the Establishment of an International Scheme for the Maintenance of Rights under Invalidity, Old-​Age and Widows’ and Orphans’ Insurance, No. 48, 22 June 1935. ilo Recommendation concerning Income Security, No. 67, 12 May 1944. ilo Recommendation concerning Medical Care, No.69, 12 May 1944. ilo Convention concerning Freedom of Association and Protection of the Right to Organise, No. 87, 9 July 1948. ilo Convention concerning Migration for Employment, No. 97, 1 July 1949. ilo Convention concerning the Application of the Principles of the Right to Organise and to Bargain Collectively, No. 98, 1 July 1949. ilo Convention concerning Equal Remuneration, No.100, 29 June 1951. ilo Preparatory work of Convention No.102, Rapport iv, 1951.

Bibliography

349

ilo Convention concerning Minimum Standards of Social Security, No. 102, 28 June 1952. ilo Convention concerning the Abolition of Forced Labour, No. 105, 25 June 1957. ilo Convention concerning Discrimination in Respect of Employment and Occupation, No.111, 25 June 1958 . ilo Convention concerning Equality of Treatment of Nationals and Non-​Nationals in Social Security, No.118, 28 June 1962. ilo Convention concerning Minimum Age for Admission to Employment, No. 138, 26 June 1973. ilo Convention concerning Migration in Abusive Conditions and the Promotion of Equality of Opportunity and Treatment of Migrant Workers, No.143, 24 June 1975. ilo Convention concerning the Establishment of an International Scheme for the Maintenance of Social Security, No. 157, 21 June 1982. ilo Recommendation concerning the Establishment of an International System for the Maintenance of Rights in Social Security, No. 167, 20 June 1983. ilo Declaration on Fundamental Principles and Rights at Work, 18 June 1998. ilo Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour, No.182, 17 June 1999. European Commission and ilo, ‘Memorandum of Understanding concerning the Establishment of a Strategic Partnership between the International Labour Organisation and the Commission of the European Communities in the field of Development’, 15.07.2004 Brussels and 16.07.2004 Geneva. ilo Convention concerning Decent Work for Domestic Workers, No. 189, 16 June 2011 . ilo Recommendation No.202 concerning National Floors of Social Protection, 14 June 2012.

1.3.3

UN

Universal Declaration of Human Rights of 10 December 1948 (udhr). Vienna Convention on Diplomatic Relations of 18 April 1961. Vienna Convention on Consular Relations of 18 April 1961. International Covenant on Civil and Political Rights of 16 December 1966 (iccpr). International Covenant on Economic, Social and Cultural Rights of 16 December 1966 (icescr). Commission on Human Rights resolution 1999/​44. Convention on the Rights of Persons with Disabilities of 13 December 2006. The Committee on Economic, Social and Cultural Rights:  General Comment No. 19: The right to social security (Art.9), adopted at the 39th Session, 5–​23 Nov. 2007, Doc. E/​C.12/​GC/​19 (UN).

350 Bibliography Report of the Special Rapporteur on the human rights of migrants on a 2035 agenda for facilitating human mobility, UN General Assembly, 28 April 2017, A/​HRC/​35/​25.

1.3.4

wto

Agreement Establishing the World Trade Organization (wto Agreement). General Agreement on Trade in Services, Annex 1b of the wto Agreement (gats). Singapore wto Ministerial 1996: Ministerial Declaration, WT/​MIN(96)/​DEC.

2

Secondary Sources

D. Acosta Arcarazo, The Long-​Term Residence Status as a Subsidiary Form of EU Citizenship: An Analysis of Directive 2003/​109 (Brill 2011). F. Amtenbrink & D. Kochenov, ‘Towards a More Flexible Approach to Enhanced Cooperation’, in A. Ott & E. Vos (Eds.), Fifty Years of European Integration: Foundations and Perspectives (t.m.c. Asser Press 2009). P. G. Andrade, ‘Privileged Third-​Country Nationals and Their Right of Free Movement and Residence to and in the EU: Questions of Status and Competence’, in E. Guild, C. J. Gortazar Rotaeche & D. Kostakopoulou, The Reconceptualization of European Union Citizenship (Brill 2014). J. Apap, ‘Shaping Europe’s Migration Policy:  New Regimes for the Employment of Third-​Country Nationals:  A Comparison of Strategies in Germany, Sweden, the Netherlands and the UK’ 4 European Journal of Migration and Law (2002). A. Arnull, ‘Protocol (No 30) on the Application of the Charter of Fundamental Rights of the European Union to Poland and the United Kingdom’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014). G. de Baere, Constitutional Principles of EU External Relations (Oxford University Press 2008). C. Barnard & G. de Baere, Towards a European Social Union. Achievements and Possibilities under the Current EU Constitutional Framework (KULeuven EuroForum 2014). C. Barnard, ‘The Silence of the Charter: Social Rights and the Court of Justice’, in S. de Vries, U. Bernitz & S. Weatherill (Eds.), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015). C. Baudenbacher, ‘The EFTA Court and the Court of Justice of the European Union: Coming in Parts But Winning Together’, in A. Rosas, E. Levits, Y. Bot (Eds.), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of Case law (t.m.c Asser Press 2013).

Bibliography

351

A. Beduschi, ‘An Empty Shell? The Protection of Social Rights of Third-​Country Workers in the EU after the Single Permit Directive’ 17 European Journal of Migration and Law (2015). W. Bosswick, ‘Germany-​still a reluctant country of immigration?’, in D. Turton &J. González (Eds.), Immigration in Europe: Issues, Policies and Case Studies (University of Deusto 2003). C. Budd, ‘US-​EU Relation After Lisbon: Reviving Transatlantic Cooperation’ (lse Research Online 2010). H. Caglayankaya, Betere coördinatie van socialezekerheidsrechten voor derdelandonderdanen: Een onderzoek aan de hand van case study Turkije (Boomjuridisch 2016). S. Carrera & J. Parkin, ‘Protecting and Delivering Fundamental Rights of Irregular Migrants at Local and Regional Levels in the European Union’ (European Union 2011). E. Collett, ‘Blue Card and the 'global battle for talent'’ (epc Commentary 2009). R. Cornelissen, ‘The Principle of Territoriality and the Community Regulations on Social Security (Regulations 1408/​71 and 574/​72)’ 33 Common Market Law Review (1996). R. Cornelissen, ‘Third-​Country Nationals and the European Coordination of Social Security’ 10 European Journal of Social Security (2008). R. Cornelissen, ‘Achievements of 50 years of European Social Security Coordination’, in Y. Jorens (Ed.), Report of the conference celebrating the 50th Anniversary of the European Coordination of Social Security (European Union 2010). R. Cornelissen, ‘How Difficult Is It to Change EU Social Security Coordination Legislation? A Story of Changing Legal Basis’ Pravnik, Revija za pravno teorijo in prakso (2012). R. Cornelissen & G. Van Limberghen, ‘Social security for mobile workers and labour law’ in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). S. Cosemans & I. Gooderis, ‘Indian migration to Belgium’, CARIM-​India Research Report (45, 2013). R. Cholewinski, ‘International Labour Law and the Protection of Migrant Workers: Revitalizing the Agenda in an Era of Globalization’, in J.D. Craig & M. Lynk (Eds.), Globalization and the Future of Labour Law (Cambridge University Press 2006). R. Cholewinski, ‘Human Rights of Migrants: the Dawn of a New Era?’ 24 Georgetown Immigration Law Journal (2009–​2010). R. Cholewinski, ‘Labour Migration Management and the rights of migrant workers’, in A. Edwards & C. Ferstman (Eds.), Human Security and Non-​citizens: Law, Policy, and International Affairs (Cambridge University Press 2010). Council of Europe, ‘Digest of the case law of the European Committee of Social Rights’ (2008).

352 Bibliography M. Cremona, ‘Defining competence in EU external relations: lessons from the Treaty reform process’, in A. Dashwood & M. Maresceau (Eds.), Law and Practice of EU External Relations: Salient Features of a Changing Landascape (Cambridge University Press 2008). M. Cremona, ‘External Relations and External Competence of the European Union: The Emergence of an Integrated Policy’, in P. Craig & B. de Burca, The Evolution of EU Law (Second Edition, Oxford University Press 2011). A. Crescenzi, ‘Social Security, Social Assistance and Health Care in the Charter of Fundamental Rights’, in G. Palmisano (Ed.), Making the Charter of Fundamental Rights a Living Instrument (Brill 2015). A. Dashwood & J. Heliskoski, ‘The Classic Authorities Revisited’, in A. Dashwood & C. Hillion (Eds.), The General Law of EC External Relations (Sweet & Maxwell 2000). A. Dashwood, ‘EU Acts and Member State Acts in the Negotiation, Conclusion, and Implementation of International Agreements’, in M. Cremona & C. Kilpatrick (Eds.), EU Legal Acts. Challenges and Transformation (Oxford University Press 2018). V. Daurer, Tax Treaties and Developing Countries (Kluwer Law International 2014). A. David & J-​N. Senne, ‘A descriptive analysis of immigration to and emigration from the EU. Where does the EU stand within OECD?’ OECD Social, Employment and Migration Working Papers (184, 2016). A. Desmond, ‘The Triangle that could Square the Circle? The UN International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families, the EU and the Universal Periodic Review’ 17 European Journal of Migration and Law (2015). B. De Witte, ‘The Place of OMC in the System of EU Competences and Sources of Law’ European Papers (2018). T. Dijkhoff, International Social Security Standards in the European Union. The Cases of the Czech Republic and the Estonia (Intersentia 2011). T. Dijkhoff, ‘The contested value of international social security standards in the European Union’ 14 European Journal of Social Security (2012). T. Dijkhoff, ‘The Guiding Role of ILO Convention No.102’, in U. Becker, F. Pennings & T. Dijkhoff (Eds.), International Standard-​Setting and Innovations in Social Security (Kluwer Law International 2013). T. Dijkhoff, ‘Supervision of social security standards: Between law and politics’ in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). M. Dougan, ‘The Unfinished Business of Enhanced Cooperation: Some Institutional Questions and Their Constitutional Implications’, in A. Ott & E. Vos (Eds.), Fifty Years of European Integration: Foundations and Perspectives (t.m.c. Asser Press 2009). P. Eeckhout, EU External Relations Law (Second Edition, Oxford University Press 2011).

Bibliography

353

E. Eichenhofer, ‘Social security as a human right: A European perspective’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). K. Eisele & A.P. van der Mei, ‘Portability of Social Benefits and Reverse Discrimination of EU citizens vis-​à-​vis Turkish Nationals: Comments on Akdas’ 37 European Law Review (2012). K. Eisele & A. Wiesbrock, ‘Reaching Out-​The External Dimension of the EU’s Migration Policy. A Comparative Study on India and Australia’. CARIM-​India Research Report (12, 2013). K. Eisele, The External Dimension of the EU’s Migration Policy –​Different Legal Positions of Third-​Country Nationals in the EU: A Comparative Perspective (Brill 2014). K. Eisele, ‘Social Security Coordination I  Association Agreements:  Is a common EU approach with third countries in sight?’ European Journal of Social Security (2018). European Migration Network, ‘Synthesis Report-​Migrant access to social security and healthcare: policies and practices’ (European Migration Network Study 2014). R. Euwals, J. Dagevos, M. Gijsberts & H. Roodenburg, ‘Citizenship and Labor Market Position:  Turkish Immigrants in Germany and the Netherlands’. 44 International Migration Review (2010). A. Farahat, ‘Is there a human right to equal social security? EU migration law and the requirements of Art. 9 ICESCR’, in M.Maes, M.-​C. Foblets, Ph. De Bruycker (Eds.), External Dimension of EU Migration and Asylum Law and Policy (Bruylant 2011). P. Fargues, K. Lum, ‘India-​EU Migration:  A Relationship with Untapped Potential’, CARIM-​India Research Report (1, 2014). V. Flohimont & J-​F. Neven, ‘Allocations familiales : les enjeux du transfert, à mi-​parcous’ Revue Belge de la Sécurité Sociale (2015). K. Fløistad, The EEA Agreement in a Revised EU Framework for Welfare Services, Studies in European Economic Law and Regulation 13 (Springer, 2018). K. Fuchs, ‘The European Social Charter: Its Role in Present-​Day Europe and Its Reform’, in K. Drzewicki, C. Krause & A. Rosas (Eds.), Social Rights as Human Rights: A European Challenge (Institute for Human Rights, Åbo Akademi University 1994). M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015). M. Fuchs, ‘Article 3:  Material scope’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015). J. Fudge & P. Herzfeld Olsson, ‘The EU Seasonal Workers Directive: When Immigration Controls Meet Labour Rights’ 16 European Journal of Migration and Law (2014). D. Ghailani, I. Guardiancich, D. Natali, M. Ferrera & M. Jessoula, ‘Scope of the coordination system in the pension field’ OSE Report (2011).

354 Bibliography B. A. Garner (Ed.), Black’s Law Dictionary (Tenth Edition, Reuters 2014). J. Gereke, ‘Highly-​Skilled Indian Migrants in Germany’, CARIM-​India Research Report (32, 2013). M. Gijzen, ‘The Charter: A milestone for social protection in Europe’, 8 Maastricht Journal of European and Comparative Law (2001). W. van Ginneken, ‘Social Protection for Migrant Workers: National and International Policy Challenges’ 15 European Journal of Social Security (2013). A. Grgić, Z. Mataga, M. Longar & A. Vilfan, ‘The right to property under the European Convention on Human Rights : a guide to the implementation of the European Convention on Human Rights and its protocols’ (Human Rights Handbooks, No. 10, Council of Europe Publishing 2007). K. Groenendijk, ‘The Court of Justice and the Development of EEC-​Turkey Association Law’, in D. Thym & M. Zoeteweij-​Turhan (Eds.) Rights of Third-​Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015). K. Groenendijk, ‘Equal treatment of workers from third countries: the added value of the Single Permit Directive’ ERA Forum (2015). D. Grossen, P. Gasser & D. Veuve, ‘Accord sur la libre circulation des personnes/​Abkommen über die Freizügigkeit der Personen’, Dossier de droit européen 8 (2001). X. Groussot & G. T. Petursson, ‘The EU Charter of Fundamental Rights Five Years on: The Emergence of a New Constitutional Framework?’, in S. de Vries, U. Bernitz & S. Weatherill (Eds.), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015). S. Günter Nagel & F. R. Kessler, Social Security Law, Council of Europe (Kluwer Law International 2010). S. Günter Nagel, ‘L’exécution des arrêts de la Cour européenne des Droits de l’Homme en matière de sécurité sociale’, in J. Van Langendonck (Ed.), The right to social security (Intersentia 2007). L. Halleskov, ‘The Long-​Term Residents Directive: A Fulfilment of the Tampere Objective of Near-​Equality?’ 7 European Journal of Migration Law (2005). M. Hercog, ‘The Role of the State in Attracting Highly-​Skilled Migrants: the Case of the Netherlands’ (eipascope 2008). R. Holzmann & M. Werding, ‘Portability of Social Benefits: Research on a Critical Topic in Globalization’ (CESifo Economic Studies 2015). R. Holzmann, M. Fuchs, S. Paçaci Elitok & P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Austria-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1602, World Bank Group Social Protection & Labor 2016). R. Holzmann, J. Wels & P. Dale, ‘Assessing Benefit Portability for International Migrant Workers:  A Review of the Belgium-​Morocco Bilateral Social Security Agreement’,

Bibliography

355

Social Protection & Labor Discussion Paper (No.1603, World Bank Group Social Protection & Labor 2016). R. Holzmann, F. Legros & P. Dale, ‘Assessing Benefit Portability for International Migrant Workers:  A Review of the France-​Morocco Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1604, World Bank Group Social Protection & Labor 2016). R. Holzmann, ‘Do Bilateral Social Security Agreements Deliver on the Portability of Pensions and Health Care Benefits? A  Summary Policy Paper on Four Migration Corridors Between EU and Non-​Member States’, Social Protection& Labor Discussion Paper (No.1605, World Bank Group Social Protection & Labor 2016) . R. Holzmann, M. Fuchs, S. Paçaci Elitok, P. Dale, ‘Assessing Benefit Portability for International Migrant Workers: A Review of the Germany-​Turkey Bilateral Social Security Agreement’, Social Protection & Labor Discussion Paper (No.1606, World Bank Group Social Protection & Labor 2016). S. Iglesias Sánchez, ‘Free Movement of Third Country Nationals in the European Union? Main Features, Deficiencies and Challenges of the new Mobility Rights in the Area of Freedom, Security and Justice’ 16 European Law Journal (2009). ilo, World Social Security Report 2010/​11: Providing coverage in times of crisis and beyond (2010). ilo, Social Security Coordination for non-​EU States in South and Eastern Europe: a legal analysis (2012). N. Jaaskinen, ‘Fundamental Social Rights in the Charter-​Are They Rights? Are They Fundamental?’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014). J-​P. Jacqué, ‘Explanations Relating to the Charter of Fundamental Rights to the European Union’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014). N. Jansen,’Comparative Law and Comparative Knowledge’, in M. Reimann & R. Zimmermann (Eds.), The Oxford Handbook of Comparative Law (Oxford University Press 2006). M. Jesse, ‘Missing in Action:  Effective Protection for Third-​Country Nationals from Discrimination under Community Law’ in E. Guild, K. Groenendijk and S. Carrera (Eds.), Illiberal Liberal States: Immigration, Citizenship and Integration in the EU (Ashgate 2009). Y. Jorens & J. De Coninck, ‘Reply to an ad hoc request for comparative analysis: Equal treatment obligations under EU instruments for third-​country nationals’ (FreSsco, July 2015). J. Jurgens, ‘The legacies of labor recruitment:  the guest worker and green card programs in the Federal Republic of Germany.’ 29 Policy and Society (2010).

356 Bibliography C. Kaddous, ‘The relations between the EU and Switzerland’, in A. Dashwood & M. Maresceau (Eds.), Law and Practice of EU External Relations. Salient Features of a Changing Landscape (Cambridge University Press, 2008). C. Kaddous, ‘Le rôle de la Cour de Justice dans l’interprétation de l’accord d’association CEE-​Turquie’, in B. Bonnet (Ed.), Turquie et Union européenne. État des lieux (Bruylant 2012). B. Kahil-​Wolff & P-​Y. Greber, Sécurité sociale: aspects de droit national, international et européen (Dossier de droit européen n°14, Bruylant 2006). G. Katrougalos, ‘Social security in the ‘case law’ of the Social Rights Committee’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). K. Kapuy, D. Pieters & B. Zaglmayer, Social Security Cases in Europe: The European Court of Human Rights (Intersentia 2007). K. Kapuy, ‘Social security and the European Convention on Human Rights: How an odd couple has become presentable’ 9 European Journal of Social Security (2007). K. Kapuy, The social security position of irregular migrant workers. New insights from national social security law and international law (Intersentia 2011). K. Kapuy, ‘Irregular migrant workers and social security’, in G. Vonk (Ed.), Cross-​Border Welfare State. Immigration, Social Security and Integration (Social Europe Series 29, Intersentia 2012). J. Kenner, ‘Economic and Social Rights in the EU Legal Order: the Mirage of Indivisibility’, in T. Hervey & J. Kenner (Eds.), Economic and Social Rights under the EU Charter of Fundamental Rights: a Legal Perspective (Hart Publishing 2003). Y. Kerem Gümüs, ‘EU Blue Card Scheme: the Right Step in the Right Direction?’ 12 European Journal of Migration and Law (2010). F. Kessler & J-​P. Lhernould, ‘The Impact of Social Security Conventions: France’, in F. Pennings (Ed.), Between Soft and Hard Law; the Impact of International Social Security Standards on National Social Security Law (Kluwer Law International 2006). A. Klekowski von Koppenfels, Migrants or Expatriates? Americans in Europe (Palgrave Macmillan 2014). M. Korda, The Role of International Social Security Standards; An in-​depth study through the case of Greece (Intersentia 2013). J. Krommendijk, ‘Principled Silence or Mere Silence on Principles? The Role of the EU Charter’s Principles in the Case Law of the Court of Justice’ 11 European Constitutional Law Review (2015). P. J. Kuijper, J. Wouters, F. Hoffmeister, G. De Baere, & T. Ramopoulos, The Law of EU External Relations. Cases, Materials, and Commentary on the EU as an International Legal Actor (Oxford University Press 2013).

Bibliography

357

U. Kulke, ‘Overview of Up-​to-​Date ILO Social Security Conventions’, in F. Pennings (Ed.), Between Soft and Hard Law. The Impact of International Social Security Standards on National Social Security Law (Kluwer Law International 2006). L. Lamarche, ‘The Right to Social Security in the International Covenant on Economic, Social and Cultural Rights’, in A. Chapman & S. Russell (Eds.), Core Obligations: Building a Framework for Economic, Social and Cultural Rights (Intersentia 2002). M. Lang, P. Pistone, J. Schuch & C. Staringer (Eds.), The Impact of the OECD and UN Model Conventions on Bilateral Tax Treaties (Cambridge University Press 2012). M. Lang, Introduction to the Law of Double Taxation Conventions (Second Revised Edition, Linde and ibfd 2013). K. Lannoo, M. Barslund, A. Chmelar & M. von Werder, ‘Pension Schemes: Study for the EMPL Committee’ (European Union 2014). A. Lazowski, ‘Enhanced Multilateralism and Enhanced Bilateralism: Integration without Membership in the European Union’ 45 Common Market Law Review (2008). V. A. Leary, ‘The WTO and the Social Clause: Post-​Singapore’ European Journal of International Law (1997). A.E.M. Leijten, ‘From Stec to Valkov: possessions and margins in the social security case law of the European Court of Human Rights’ 13 Human Rights Law Review (2013). G. van der Loo, The EU-​Ukraine Association Agreement and Deep and Comprehensive Free Trade Area. A  New Legal Instrument for EU Integration Without Membership (Brill 2016). K. Lum, ‘Indian Diversities in Italy: Italian Case Study’, CARIM-​India Research Report (2, 2012). E. MacDonald & R. Cholewinski, The Migrant Workers Convention in Europe. Obstacles to the Ratification of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families: EU/​EEA Perspectives. (unesco, Migration Studies 1, 2007). E. MacDonald & R. Cholewinski, ‘The ICRMW and the European Union’, in P. De Guchteneire, A. Pécoud & R. Cholewinski (Eds.), Migration and Human Rights: the United Nations Convention on Migrant Workers’ Rights (unesco Publishing, Cambridge University Press 2009). M. Maresceau, Bilateral agreements concluded by the European Community (Collected Courses of The Hague Academy of International Law, Brill 2004). M. Maresceau, ‘The Court of Justice and Bilateral Agreements’, in A. Rosas, E. Levits & Y. Bot (Eds.), The Court of Justice and the Construction of Europe: Analyses and Perspectives on Sixty Years of case law (t.m.c. Asser Press 2013). M. Maresceau, ‘Les accords d’intégration dans les relations de proximité de l’Union européenne’, in C. Blumann (Ed.), Les frontières de l’Union européenne (Bruylant 2013). M. Martiniello, ‘Belgium’s Immigration Policy’ 37 International Migration Review (2003).

358 Bibliography A-​P. van der Mei & G. Essers, ‘Case C-​352/​06, Brigitte Bosmann v.Bundesagentur für Arbeit-​Familienkasse Aachen, judgment of the Court (Grand Chamber) of 20 May 2008’ 46 Common Market Law Review (2009). A-​P. van der Mei, ‘Overview of recent cases before the European Court of Human Rights and the European Court of Justice (April-​June 2012)’ European Journal of Social Security (2012). A-​P. van der Mei, ‘India-​EU Migration: the Social Security Rights of Indian Nationals Moving to and within the European Union’, CARIM-​India Research Report (24, 2013). A-​P. van der Mei, ‘Overview of recent cases before the Court of Justice of the European Union (January-​June 2016)’ 18 European Journal of Social Security (2016). P. Melin, ‘The Search of EU Competence(s) for the Externalization of Social Security Coordination: Where There's a Will, There's a Way. Case C-​81/​13 United Kingdom v. Council (Turkish Case)’ 22 Maastricht Journal of European and Comparative Law (2015). P. Melin, ‘Social security benefits of Indian migrants in Europe: loss or win situation in case of return?’ in S. Irudaya Rajan (Ed.), Indian Migration Report 2018 (Routledge 2018). P. Melin, ‘A comparative legal analysis of the Member States’ social security agreements with India:  towards a common EU approach?’, European Journal of Social Security (2018). M. Mikkola, ‘Common denominators of European social security’, in J. Van Langendonck (Ed.), The right to social security (Intersentia 2007). M. Mikkola, ‘Social Human Rights of Migrants Under the European Social Charter’ 10 European Journal of Social Security (2008). M. Mikkola, ‘The development of European social security standards’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). P. Minderhoud, ‘The ‘other’ EU security: social protection’ 8 European Journal of Social Security (2006). P. Minderhoud, ‘Decision 3/​80 of the EEC-​Turkey Association Council:  Significance and Developments’, in D. Thym & M. Zoeteweij-​Turhan (Eds.), Rights of Third-​ Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015). P. Minderhoud & T. Striks (Eds.), The Single Permit Directive: Central Themes and Problem Issues (Wolf Legal Publishers 2015). P. Minderhoud, ‘Social Security Rights under Decision No 3/​80 of the EEC-​Turkey Association Council:  Developments in the EU and in the Netherlands’ 18 European Journal of Social Security Law (2016). missoc, MISSOC Analysis 2013/​2:  External Aspects of Social Security Coordination (2013).

Bibliography

359

D. Mukherjee & R. Chanda, ‘Investment and Migration linkages between India and the EU’, CARIM-​India Research Report (16, 2012). A. Müller, M. M. Mayer & N. Bauer, ‘Social Security for Third Country Nationals in Germany. Study by the German National Contact Point for the European Migration Network (EMN)’, Working Paper 57 (Federal Office for Migration and Refugees 2014). N. Mussche, V. Corluy & I. Marx, ‘Migrant Access to Social Security-​policy and practice in Belgium’ (European Migration Network Study 2013). S. Nasrolahi Fard, Reciprocity in International Law: Its Impact and Function (Routledge Research in International Law, Routledge 2016). J. Nickless, European Code of Social Security. Short Guide (Council of Europe Publishing 2002). H. Nicolaas & A. Sprangers, ‘Internationale migratie. Nederland in een Europees context’ in F. van Tubergen & I. van Maas (Eds.), Allochtonen in Nederland in internationaal perspectief (Amsterdam University Press 2006). C. O’Cinnéide, ‘Migrant Rights under the European Social Charter’, in C. Costello & M. Freedland (Eds.), Migrants at Work:  Immigration and Vulnerability in Labour Law (Oxford Scholarship Online 2014). oecd, International Migration Outlook 2014 (oecd Publishing 2014). oecd, Education Indicators in Focus (oecd Publishing 2015). J. Orbie, H. Vos & L. Taverniers, ‘EU trade policy and a social clause: a question of competences?’ 17 Politique européenne (2005). J. Orbie & L. Tortell (Eds.), The European Union and the Social Dimension of Globalization. How the EU influences the world (Routledge 2009). A. Ott, ‘The legal bases for international agreements post-​Lisbon: of Pirates and the Philippines’ 21 Maastricht Journal of European and Comparative Law (2014). J. Paju, ‘Much Ado About Nothing? How the EU Charter of Fundamental Rights Could Challenge Prevailing Notions of Territorial Rights and Solidarity as Regards National Social Security Systems’, in S. de Vries, U. Bernitz & S. Weatherill (Eds.), The EU Charter of Fundamental Rights as a Binding Instrument: Five Years Old and Growing (Hart Publishing 2015). A. Pascal, Union européenne et USA:  protection sociale des travailleurs migrants (Bruylant 2016). V. Paskalia, ‘Co-​ordination of Social Security in the European Union: An Overview of recent case law’ 46 Common Market Law Review ( 2009). A. Pécoud & P. de Guchteneire, ‘Migration, Human Rights and the United Nations: An Investigation into the Obstacles to the UN Convention on Migrant Workers Rights’ 24 The Windsor Yearbook of Access to Justice, (2006). S. Peers, ‘Joined Cases C-​95/​99 to 98/​99, Mervett Khalil and Others v. Bundesanstalt für Arbeit and Landeshauptstadt Stuttgart and Case C-​180/​99, Meriem Addou v. Land

360 Bibliography Nordrhein-​Westfalen, Judgment of the Full Court of 11 October 2001[2001] ECR I-​74 13’ 39 Common Market Law Review (2002). S. Peers, ‘Implementing Equality? The Directive on Long Term Resident Third Country Nationals’ 29 European Law Review (2004). S. Peers, ‘Divorce, European Style: The First Authorization of Enhanced Cooperation’ 6 European Constitutional Law Review (2010). S. Peers, ‘Legislative Update EU Immigration and Asylum Law 2010: Extension of Long-​ Term Residence Rights and Amending the Law on Trafficking in Human Beings’ 13 European Journal of Migration and Law (2011). S. Peers, EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition, Volume 2: EU Immigration Law (Brill 2012). S. Peers, ‘Chapter  3:  The ‘Blue Card’ Directive’, in S. Peers, E. Guild, D. Acosta, K. Groenendijk and V. Moreno-​Lax (Eds.), EU Immigration and Asylum Law (Text and Commentary): Second Revised Edition, Volume 2: EU Immigration Law (Martinus Nijhoff Publishers 2012). S. Peers, ‘Towards a New Form of EU Law?: The Use of EU Institutions outside the EU Legal Framework’ European Constitutional Law Review (2013). S. Peers, ‘EU Migration Law and the EU/​Turkey Association Agreements’, in D. Thym & M. Zoeteweij-​Turhan (Eds.) Rights of Third-​Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015). F. Pennings, ‘The European Commission Proposal to Simplify Regulation 1408/​71’European Journal of Social Security (2001). F. Pennings, ‘Co-​ordination of Social Security on the Basis of the State-​of-​employment Principle: Time for an Alternative?’ 42 Common Market Law Review (2005). F. Pennings (Ed.), Between Soft and Hard Law; the Impact of International Social Security Standards on National Social Security Law (Kluwer Law International 2006). F. Pennings, ‘The Meaning of International Standards in Social Security’, in J. Van Langendonck (Ed.), The Right to Social Security (Social Europe Series, 12, Intersentia 2007). F. Pennings, ‘Conclusion: Simplification, Modernisation and Regulation883/​2004’ European Journal of Social Security (2009). F. Pennings, European Social Security Law (Fifth Edition, Intersentia 2010). F. Pennings, ‘Historical and Theoretical Background of Standard Setting in Social Security’, in U. Becker, F. Pennings & T. Dijkhoff (Eds.), International Standard-​Setting and Innovations in Social Security (Kluwer Law International 2013). F. Pennings, European Social Security Law (Sixth Edition, Intersentia 2015). F. Pennings, ‘Principles of EU coordination of social security’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). G. Perrin, ‘Histoire du droit international de la sécurité sociale’ in A. Barjot (Ed.), La sécurité sociale, son histoire à travers les textes (Vol. v, Association pour l’étude de l’histoire de la sécurité sociale 1993).

Bibliography

361

R. Petrov, ‘Legal Basis and Scope of the New EU-​Ukraine Enhanced Agreement. Is there any room for further speculation?’ EUI Working Papers (2008). D. Pieters (Ed.), The Coordination of Social Security at Work (acco 1998). D. Pieters, Social Security: An Introduction to the Basic Principles (Second Revised Edition, Kluwer Law International 2006). B. K. Potnuru & V. Sam, ‘India-​EU Engagement and International Migration: Challenges and Policy Imperatives’ CARIM-​India Research Report (26, 2012). C. Rapoport, ‘La procédure de conclusion des accords externes de l’Union Européenne:  Quelle unité après Lisbonne  ?’, in I. Govaere, E. Lannon, P. van Elsuwege & S.Adam (Eds.), The European Union in the World. Essayes in Honour of Marc Maresceau (Martinus Nijhoff Publishers 2014). M. Reimann & R. Zimmermann (Eds.), The Oxford Handbook of Comparative Law (Oxford University Press 2006). N. Rennuy, ‘The emergence of a parallel system of social security coordination’ 50 Common Market Law Review (2013). N. Rennuy & P. van Elsuwege, ‘Integration without membership and the dynamic development of EU law: United Kingdom v. Council (EEA)’ 51 Common Law Market Review (2014). E. Riedel, ‘The Human Right to Social Security: Some Challenges’, in E. Riedel (Ed.), Social Security as a Human Right: Drafting a General Comment on Article 9 ICESR-​Some Challenges (Springer 2007). S. Roberts, ‘A short history of social security coordination’, in Y. Jorens (Ed.), Report of the conference celebrating the 50th Anniversary of the European Coordination of Social Security (European Union 2010). S.K. Sasikumar & R. Thimothy, ‘Migration of Low Skilled Workers from India to the European Union’, CARIM-​India Research Report (15, 2012). P. Schoukens, ‘Acceding to the multilateral co-​ordination convention on social security: consequences for the social security legislation of the involved SISP-​parties (Albania, Croatia, BIH, Kosovo, Serbia and Montenegro)’. (sisp Programme, Council of Europe 2006). P. Schoukens & D. Pieters, ‘The rules within Regulation 883/​2004 for determining the applicable legislation’ European Journal of Social Security (2009). P. Schoukens & D. Pieters, ‘Irregular labour migrants and access to social protection’, in G. Vonk (Ed.), Cross-​Border Welfare State. Immigration, Social Security and Integration (Social Europe Series 29, Intersentia 2012). P. Schoukens, EU Social Security Law: The Hidden ‘Social’ Model. Inaugural Address delivered at Tilburg University on Friday, February 19, 2016. Available at http://​eiss.be/​ onewebmedia/​oration_​Schoukens.pdf%20(final).pdf, last accessed on 2 May 2018. R. Schuler, ‘Article 7: Waiving of residence rules’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A  Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015).

362 Bibliography R. Schütze, European Union Law (Cambridge University Press 2015). Secretariat of the European Social Charter, ‘Migrant’s Rights in the European Social Charter’ (June 2006). J-​M. Servais, International Labour Law (Third Revised Edition, Kluwer Law International 2011). L. Slingenberg, ‘Social security in the case law of the European Court of Human Rights’, in F. Pennings & G. Vonk (Eds.), Research Handbook on European Social Security Law (Edward Elgar Publishing 2015). B. Spiegel, ‘Analysis of Member States’ Bilateral Agreements on Social Security with Third Countries’ (2010). M. Ssenyonjo, Economic, Social and Cultural Rights in International Law (Second Edition, Hart Publishing 2016) . H-​D. Steinmeyer, ‘Determination of the legislation applicable’, in M. Fuchs & R. Cornelissen (Eds), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015). H-​D. Steinmeyer, ‘Article 12: special rules’, in M. Fuchs & R. Cornelissen (Eds.), EU Social Security Law. A Commentary on EU Regulations 883/​2004 and 987/​2009 (Nomos, C.H. Beck and Hart Publishing 2015). L. H. Storgaard, ‘The Long-​Term Residents Directive: A Fulfilment of the Tampere Objective of Near-​Equality?’, in E. Guild & P. Minderhoud (Eds.), The First Decade of EU Migration and Asylum Law (Martinus Nijhoff Publishers 2011). G. Strban, ‘The existing bilateral and multilateral social security instruments binding EU states and non-​EU states’ in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009). A. M. Swiatkowski, Charter of Social Rights of the Council of Europe (Kluwer Law International 2007). N. Taha, K. A. Siegmann & M. Messkoub, ‘How portable is social security for migrant workers? A review of the literature’ 68 International Social Security Review (2015). K. Tapiola, ‘Global Standards: The Policy of the ILO’, in U. Becker, F. Pennings & T. Dijkhoff (Eds.), International Standard-​Setting and Innovations in Social Security (Kluwer Law International 2013). C. Timmerman, ‘Gender Dynamics in the Context of Turkish Marriage Migration: The Case of Belgium’, in R. Erzan & K. Kirisci (Eds.), Turkish Immigrants in the European Union. Determinants of Immigration and Integration (Routledge 2008). C. Tobler, ‘Context-​related Interpretation of Association Agreements. The Polydor Principle in a Comparative Perspective:  EEA law, Ankara Association Law and Market Access Agreements between Switzerland and the EU’, in D. Thym & M. Zoeteweij-​Turhan (Eds.), Rights of Third-​Country Nationals under EU Association Agreements: Degrees of Free Movement and Citizenship (Brill 2015).

Bibliography

363

J. Tooze, ‘Social security and social assistance’, in T. Hervey & J. Kenner (Eds.), Economic and Social Rights under the EU Charter of Fundamental Rights: a Legal Perspective, (Hart Publishing 2003). A. Töttős, ‘The Past, the Present and the Future of the Seasonal Workers Directive’ Pécs Journal of International and European Law (2014). United Nations, Department of Economic and Social Affairs (Population Division), ‘World Population Prospects. The 2017 Revision. Key Findings and Advance Tables’ (2017). S. Van Rapenbusch, ‘The role of the Court of Justice in the development of social security law of persons moving within the European Union’, in Y. Jorens (Ed.), Report of the conference celebrating the 50th Anniversary of the European Coordination of Social Security (European Union 2010). H. Verschueren, ‘Besluit 3/​80 (sociale zekerheid) van de Associatieraad EEG-​Turkije na het arrest Taflan-​Met: is er nog leven na de dood?’ Migrantenrecht (1997). H. Verschueren, ‘EC social security coordination excluding third country nationals: still in line with fundamental rights after the Gaygusuz judgment?’ Common Market Law Review (1997). H. Verschueren, ‘The Sürül judgment: equal treatment for Turkish workers in matters of social security’ European Journal of Migration Law (1999). H. Verschueren, ‘Social Security Co-​Ordination in the Agreements Between the EU and Mediterranean Countries’, in D. Pieters & P. Schoukens (Eds.), The Social Security Co-​Ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009). H. Verschueren, ‘Special non-​contributory benefits in regulation 1408/​71, regulation 883/​2004 and the case law of the ECJ’ European Journal of Social Security (2009). H. Verschueren, ‘The EU social security co-​ordination system:  a close interplay between the EU legislature and judiciary’ in P. Syrpis (Ed.), The judiciary, the legislature and the EU internal market (Cambridge University Pres, 2012). H. Verschueren, ‘Free movement or benefit tourism: the unreasonable burden of Brey’ 16 European Journal of Migration and Law (2014). H. Verschueren, ‘Preventing ‘Benefit Tourism’ in the EU: a narrow or broad interpretation of the possibilities offered by the ECJ in Dano’, 52(2) Common Market Law Review (2015). H. Verschueren, ‘Employment and Social Security Rights of Third-​Country Labour Migrants under EU Law: An Incomplete Patchwork of Legal Protection’ 18 European Journal of Migration and Law (2016). H. Verschueren, ‘Recent case before the Court of Justice of the European Union’, 19 European Journal of Social Security (2017). C. Villars, ‘Social security standards in the Council of Europe: the ILO influence’ 118 International Labour Review (May-​June 1979).

364 Bibliography G. Vonk, ‘Social security and property: Gaygusuz and after’, in J.P. Loof, H. Ploeger & A. van der Steur (Eds.), The Right to Property, the Influence of Article 1 Protocol No.1 ECHR on Several Fields of Domestic Law (E.M Meijers Instituut 2000). G. Vonk & S. Van Walsum, ‘Access denied. Towards a new approach to social protection for formally excluded migrants’, in G. Vonk (Ed.), Cross-​Border Welfare State. Immigration, Social Security and Integration (Social Europe Series 29, Intersentia 2012). G. Vonk, ‘Social Security Rights of Migrants:  Links between the Hemispheres’, in R. Blanpain (Ed.), Social Security and Migrant Workers: Selected Studies of Cross-​Border Social Security Mechanisms (Kluwer Law International 2014). K. de Vries, ‘Towards integration and equality for third-​country nationals? Reflections on Kamberaj’ 38 European Law Review (2013). R.C.A. White & C. Ovey, The European Convention on Human Rights (Oxford University Press 2010). R.C.A. White, ‘Article 34-​Social Security and Social Assistance’, in S. Peers, T. Hervey, J. Kenner & A. Ward (Eds.), The EU Charter of Fundamental Rights: A Commentary (Hart Publishing 2014). A. Wiesbrock, ‘Social Security Rights of Third-​Country Nationals Under the Euro-​ Mediterranean Association Agreements’, in E. Guild, S. Carrera & K. Eisele (Eds.), Social Benefits and Migration: a Contested Relationship and Policy Challenge in the EU (ceps 2013). S. A. Wülbers, The Paradox of EU-​Indian Relations: Missed Opportunities in Politics, Economics, Development Cooperation, and Culture (Lexington Books 2011). B. Zaglmayer, ‘The Social Security Relations Between the EU and the EFTA State’, in D. Pieters & P. Schoukens (eds.), The Social Security Co-​Ordination Between the EU and Non-​EU Countries (Social Europe Series 20, Intersentia 2009).

3

Blogs

G. Vonk, ‘EU-​Freedom of Movement: No Protection for the Stranded Poor, Case-​note on C-​333/​13, Elisabeta Dano v Jobcenter Leipzig’, November 25 2014, European Law Blog, available at http://​europeanlawblog.eu/​2014/​11/​25/​eu-​freedom-​of-​movement-​ no-​protection-​for-​the-​stranded-​poor/​. S. Peers, ‘Can EU law make an effective contribution to the prohibition of forced labour by the ILO?’, 16 April 2014, EU Law Analysis Blog available at http://​ eulawanalysis.blogspot.it/​2014/​04/​can-​eu-​law-​make-​effective-​contribution.html.

Bibliography

4

365

Press Articles and Press Releases

Press release from the Ministry of External Affairs, Government of India, February 2017. Available at http://​www.mea.gov.in/​press-​releases.htm?dtl/​28098/​ Agreement+on+Social+Security+between+India+and+Germany. News release from Eurostat, ‘Foreign citizens living in the Member States’, December 2015. Available at http://​ec.europa.eu/​eurostat/​documents/​2995521/​7113991/​3-​ 18122015-​BP-​EN.pdf/​d682df12-​8a77-​46a5-​aaa9-​58a00a8ee73e.

5

Websites

European External Action Service on EU relationship with Ukraine:  http://​ eeas.europa.eu/​top_​stories/​2012/​140912_​ukraine_​en.htm. TRANSMIC project. https://law.maastrichtuniversity.nl/transmic/ UN Office for the High Commissioner for Human Rights: http://​www.ohchr.org/​EN/​ Issues/​Migration/​SRMigrants/​Pages/​SRMigrantsIndex.as.

Index Albania 36, 66, 66n2, 102–​105, 110, 128, 141, 252, 305 Stabilisation and Association Council 103–​105 Stabilisation Association Agreement 66, 102–​105, 252, 305 Algeria 35, 66n1, 67, 93, 94, 96–​102, 104, 110, 127, 140, 252, 255, 305 Association Council 97–​100 Cooperation Agreement 93, 101 Euro-​Mediterranean Association Agreement 66, 94, 96–​102, 252, 305 Andorra 106 Australia 2n3, 14, 163n4, 230, 230n4 Austria 16n1, 16n5, 17n2, 19, 22n2, 52–​53, 61n7, 90, 146, 162n1, 163n4, 171, 200n1, 206n5, 227, 230–​231, 233, 250n1, 280, 285, 313 Belgium 13–​14, 14n1, 15–​17, 16n1, 16n5, 17n2, 18, 19, 20, 22n2, 22n3, 35–​36, 57, 62n5, 89n2, 99–​101, 144, 146–​188, 192n8, 198n3, 200, 200n1, 206, 206n1, 206n5, 207n6, 208n1, 211, 213n3, 235n4, 238n1, 250n1, 287n1, 291, 307 Bilateral agreements 13, 144, 307 With India 13, 146–​161, 291, 307 With Turkey 13, 171–​188, 307 With the usa 13, 162–​171, 307 Migration profile 14, 15–​17 Bilateral agreements 5–​6, 12–​13, 16–​20, 25–​26, 56–​65, 78, 80–​81, 85, 99, 109, 118, 120–​121, 123–​124, 127, 136, 140, 142–​188, 225, 227–​228, 230, 237–​238, 241, 244, 250, 259, 261, 263–​264, 273, 278, 280–​287, 289–​294, 296–​298, 300, 302, 307–​308, 311, 313–​316  See also bilateral social security agreement (ssa) Bosnia and Herzegovina 66n2, 102–​105, 110, 141, 200208, 252, 305 Stabilisation and Association Agreement 66, 102–​105, 252 Bulgaria 22n2, 78, 132n7, 200n1

Canada 2n3, 14, 163n4, 230n4, 259n2, 263 Charter of Fundamental Rights 25, 129, 133–​141, 217, 225n5 Scope of application 134–​136 See also Article 51–​54 Article 20 133, 135 Article 34 25, 129, 133, 136–​139, 217, 238n2 Article 47 134 Common commercial policy 261–​262, 261, 272 Common EU approach 9–​11, 18, 20–​21, 69, 109, 111, 141, 145, 189–​190, 237–​238, 240–​244, 249–​301, 302–​303, 306, 308–​314, 316–​317 Added value 11, 241–​244, 261, 278, 310 Conclusion of EU Agreements 11, 240–​278, 310–​313 Model agreement 279–​301, 313–​316 Common foreign and security policy (cfsp) 247, 257, 257n1, 273 Competence 64, 87, 111, 116, 124, 180, 203, 244–​249, 261, 265–​267, 271–​277, 312 Exclusive 246–​247 External 245, 265, 271–​272 Implied 245–​246, 267, 272 Internal 246, 266–​267 Non-​exclusive 275 Conferral principle 244, 288, 311, 316 Council of Europe 6, 10, 12, 189, 204–​239, 240, 279–​280, 284–​285, 308, 313 European Code on Social Security and its revised version 205, 210–​212 European Convention on Medical and Social Assistance 204, 207–​210, 238 European Convention on Social Security 6, 20, 204, 205–​207 European Convention for the Protection of Human Rights and Fundamental Freedoms (echr) 134, 189, 205, 212, 214, 218–​237, 238, 309 Article 1 of Protocol 1 of the echr 205, 219–​225, 226–​234, 236 Justification 223–​225 Non-​interference 221–​223

Index Scope 219–​221 Article 3 echr 218–​219 Article 6 echr 219 Article 8 echr 219, 226–​234, 236 Article 14 echr 219, 226–​236 Discrimination on the ground of gender 232–​234 Discrimination on the ground of immigration status 228–​229 Discrimination on the ground of nationality 227–​228 Discrimination on the ground of residence status 229–​232 European Court of Human Rights 205, 218–​237, 238 Protocol No 12 234–​236 European Interim Agreements on Social Security 204, 205–​206, 207 European Social Charter 204–​205, 212–​218, 238, 309 Collective complaints procedure 213–​214 European Committee of Social Rights 213–​215, 218 Committee of Ministers 211, 213–​214 Council of the European Union 32, 37, 72, 88–​89, 92, 95, 97, 103, 106, 111, 189, 247–​248, 254, 259–​260, 264, 267, 271, 274, 276, 281, 288, 307 Croatia 17n2, 22n2, 78, 172, 200, 200n1, 207n1, 213n3, 235n4 Cyprus 200n1, 213n3, 215n5, 235n4 Czech Republic 16n1, 16n5, 17n2, 22n2, 43, 146, 162n1, 163n4, 172, 200n1, 202n3, 206n5, 213n3, 250n1 Denmark 16n1, 16n5, 17n2, 22n2, 31n2, 32n5, 35, 55, 58n2, 62n5, 111n3, 146, 162n1, 163n4, 171, 200n1, 201, 207n6, 250n1, 257n3, 271 Development cooperation policy 260 Directive 96/​71 (Posted Workers Directive) 119, 120, 296–​297 Directive 2003/​86 (Family Reunification Directive) 66–​67, 113 Directive 2003/​109 (Long-​Term Residence Directive) 8, 33, 66–​67, 113, 114, 117, 122n2, 126–​129, 131, 139, 218, 282

367 Directive 2004/​38 (Citizenship Directive) 66n11, 80, 209 Directive 2004/​114 (old Students Directive) 131–​132 Directive 2005/​71 (old Researchers Directive) 131 Directive 2009/​50 (Blue Card Directive) 8, 22–​23, 33, 66–​67, 112, 114, 116–​118, 125, 131, 242, 282 Directive 2011/​95 (Qualification Directive) 66n11, 117, 131 Directive 2011/​98 (Single Permit Directive) 8, 66–​67, 112, 114, 121–​123, 125, 131–​132, 282, 293, 294 Directive 2014/​36 (Seasonal Workers Directive) 8, 66–​67, 112, 114, 122n2, 123–​126, 218, 282, 293, 294–​295 Directive 2014/​66 (Intra-​Corporate Transfer Directive) 8, 66–​67, 112, 114, 119–​121, 122n2, 125, 131, 282, 294, 296 Directive 2016/​801 (Re-​cast Students and Researchers Directive) 8, 33, 66–​67, 113, 114, 117, 119, 130–​133, 282, 293, 294 Eastern Partnership 107 Enhanced cooperation 274–​277, 278, 312, 313 eea efta States 1n3, 36, 69–​70, 73–​76, 78, 85n4, 110–​111, 140–​141, 265, 270, 300n1, 304 eea Agreement 65, 68, 69–​78, 79, 109–​110, 268 eea Joint Committee 69, 72, 84 efta Court 70, 73–​78 efta Surveillance Authority 70 Homogenous application 69 Social security coordination 71–​78 eea nationals 122n2, 124 EU Agreements 23, 65, 68–​69, 69–​111, 139–​141, 240–​278, 279, 281, 282, 300, 304–​306, 310–​311, 313–​314, 316–​317 Association Agreements 10, 246, 248, 252–​259, 287 Agreement on Cooperation and Customs Union with San Marino 66, 105–​106, 305 Association Agreement 105 EU-​San Marino Cooperation Committee 106

368 Index EU Agreements (cont.) Social security coordination rules 105–​106 Definition 23 eea Agreement 65, 68, 69–​78, 79, 109–​110, 268 eea Joint Committee 69, 72 eea nationals 122n2, 124 efta Court 70, 73–​78 efta Surveillance Authority 70 Homogenous application 69 Social security coordination rules  71–​78 EU agreements on social security coordination 10–​11, 240, 246, 251, 263–​277 EU social security agreement, see EU agreements on social security coordination EU-​Swiss Agreement 65, 68, 78–​85, 109 Free Trade Agreement 78 Institutional Framework Agreement 80 Joint Committees 79 Sectoral Agreements 78 Agreement on the Free Movement of Persons 78–​83 Social security coordination rules  81–​85 Swiss nationals 122n2, 124 EU-​Turkey Agreement 7, 14–​15, 65, 85–​93, 144, 174, 243, 248, 251, 252, 254–​255, 257, 260, 264–​265, 267, 281, 300, 305 Additional Protocol 86–​88, 248 Ankara Agreement, see EU-​Turkey Agreement Association Council 8, 86, 88, 92–​93, 248, 251, 253–​255, 257, 260 Decision 1/​80 87, 127 Decision 3/​80 7–​8, 20, 87–​93, 144, 174–​188, 207, 243, 248, 251, 252–​255, 257, 260, 265, 281, 300, 305–​307 Direct effect 90–​92 EU-​Turkey Association Agreement, see EU-​Turkey Agreement Social security coordination rules 87–​93, 251

Euro-​Mediterranean Association Agreements 66, 252, 305 With Algeria 66n1, 66, 94, 96–​102, 252, 305 With Egypt 66n1, 66, 94–​95, 252, 305 With Israel 66n1, 66, 94, 95–​96, 252, 305 With Jordan 66n1, 66, 95–​95, 252, 305 With Lebanon 66n1, 66, 94–​95, 252, 305 With Morocco 66n1, 66, 94, 96–​102, 252, 305 With Tunisia 8, 66n1, 66, 94, 96–​102, 252, 281, 305 Free Trade Agreements (fta s) 78, 246, 249, 253, 261–​263, 272, 311 Partnership and Cooperation Agreements 66, 246, 248, 252–​253, 259–​261 With Moldova 66n3, 66, 107–​108, 305 With Russia 66n3, 66, 68, 108–​109, 252, 259, 281, 305 With Ukraine 66n3, 66, 107–​108, 305 Stabilisation and Association Agreements 66 With Albania 66n2, 66, 102–​105, 252, 305 With Bosnia and Herzegovina 66n2, 66, 102–​105, 252, 305 With the Former Yugoslav Republic of Macedonia 66n2, 66, 102–​105, 252, 305 With Kosovo 66n2, 66, 102–​103, 252, 305 With Montenegro 66n2, 66, 102–​105, 252, 305 With Serbia 66n2, 66, 102–​105, 252, 305 Strategic Partnerships 246, 259 Egypt 66, 66n1, 94–​95, 110, 141, 252, 305 Euro-​Mediterranean Association Agreement 66, 94–​95, 252, 305 European Commission 1, 7, 8–​11, 14, 18, 20, 28, 31–​32, 88, 92, 111–​112, 116, 119, 130, 174, 189, 195, 204, 240–​242, 247–​248, 252, 263, 277, 279, 283, 285–​286, 288–​289, 292, 303–​305, 309–​311, 314 Administrative Commission (in the context of Regulation 883/​2004) 9, 64, 286–​287, 288–​289, 290, 314–​315

Index Working group on the international dimension of EU social security coordination 9, 286–​287, 288–​289 Communication on the external dimension of EU social security coordination 10, 204, 240, 263, 276, 303 EU model agreement 11, 204, 240, 252, 279–​301, 313–​317 Content 11, 289–​301 Institutional considerations 11, 279–​289 European Council 111 European Neighbourhood Policy (enp) 107 European Parliament 32, 37, 203n9, 248, 260, 264, 267, 271, 274, 282, 289 Estonia 22n2, 48, 207n6 External dimension of EU social security coordination 7–​9, 65–​133, 258 External EU mobility 24–​25, 140 Finland 16n1, 16n5, 22n2, 48, 146, 162n1, 163n4, 200, 213n3, 215n4, 235n4, 250n1 Flexibility clause, see Article 352 tfeu The Former Yugoslav Republic of Macedonia 66n2, 102–​105, 110, 110n2, 141, 200, 252, 305 Stabilisation and Association Council 103–​105 Stabilisation and Association Agreement 66, 102–​105, 252, 305 France 16n1, 16n5, 17n2, 19, 22n2, 26n2, 34, 35, 37n1, 43, 55, 58, 63, 142, 146, 162n1, 163n3, 171, 200n1, 200, 203n2, 206n5, 207n6, 212n6, 213n3, 227, 232, 250n1 Free movement 7, 31, 41, 42, 44, 59, 64, 74, 87, 117, 119, 124, 131, 136, 140, 290, 303 Free movement of persons 27, 55n4, 71–​72, 79–​80, 296, 305 Free movement of workers 25–​27, 42–​43, 58, 69, 71–​72, 264, 296, 312 gats 263, 263n2 Georgia 107, 257, 257n2 Germany 2, 2n3, 13–​17, 14n1, 16n1, 16n5, 17n2, 17n5, 19–​20, 22n2, 34–​36, 40–​41, 43, 58–​59, 58n2, 61n7, 62–​63, 62n5, 74–​76, 82–​84, 87, 89n2, 90, 132–​133, 144–​188, 145n1, 192n8, 198n3, 200, 200n1, 201,

369 206, 206n1, 206n3, 207n6, 208–​211, 228, 231, 235n4, 238n1, 250n1, 307 Bilateral agreements 13, 144–​171 With India 13, 146–​161 With Turkey 13, 171–​188 With the usa 13, 162–​171 Migration profile 14, 15–​17 Greece 16n5, 22n2, 60–​61, 104n5, 162n1, 163n4, 182, 200n1, 206n5, 207n6, 223n3, 215n2 Hungary 16n1, 16n5, 22n2, 146, 155, 162n1, 163n4, 200–​201, 222, 224, 244, 244n2, 250n1 India 2, 13–​18, 20, 34–​36, 143–​162, 167–​168, 174, 178–​179, 187–​188, 192n8, 198n3, 206, 244, 244n2, 249n6, 250, 250n1, 251, 258–​261, 285, 291–​292, 291n1, 297, 300–​301, 307–​308, 310 Bilateral agreements 13, 146–​161, 291 With Belgium 13, 146–​161, 291 With Germany 13, 146–​161 With the Netherlands 13, 146–​161 With other Member States 16n1, 146 Free Trade Agreement 249 Migration profile 15 Open Sky Agreement 249 Strategic Partnership with the EU 15, 249, 258 Internal dimension of EU social security coordination 6–​7, 24–​65, 306 Intra-​EU mobility 24–​25, 140, 303 International agreements, see EU agreements ilo 4–​5, 10, 12, 26n5, 189, 190n1, 192–​204, 206n2, 210–​211, 213, 238, 240, 242, 242n6, 280, 302, 308–​309, 313 Committee of Experts on the Application of Conventions and Recommendations (ceacr) 197–​198, 203n2, 211 Conference Committee on the Application of Standards 197–​198 ilo Convention No. 48 196, 198, 200–​201, 202 ilo Convention No. 97 193, 198 ilo Convention No. 102 5, 192, 196, 198–​200, 202, 210–​211, 211n5, 215, 215n4, 215n5, 231, 309

370 Index ilo (cont.) ilo Convention No. 118 20, 196, 198, 201, 203 ilo Convention No. 121 203 ilo Convention No. 128 203 ilo Convention No. 143 193, 198, 198n4 ilo Convention No. 157 196, 198, 201–​202, 201n1, 279–​280, 313 ilo Recommendation No. 67 198 ilo Recommendation No. 69 199 ilo Recommendation No. 167 201–​202, 279–​280 Strategic Partnership with the EU 204, 242 Ireland 16n5, 22n2, 31n2, 32n5, 35, 62n5, 93, 11n3, 162n1, 163n4, 200n1, 201, 206n5, 207n6, 213n3, 257n3, 270n4, 271 Israel 66n1, 94–​96, 98–​99, 104, 110, 141, 200, 252, 305 Association Council 95–​96 Euro-​Mediterranean Association Agreement 66, 94, 95–​96, 252, 305 Italy 16n5, 17n2, 22n2, 63, 123, 128, 139, 148n5, 162n1, 163n4, 172, 200n1, 200–​201, 207n6, 213n3, 224 Jordan 66n1, 94–​95, 110, 141, 252, 305 Euro-​Mediterranean Association Agreement 66, 94–​95, 252, 305 Kosovo 66n2, 102–​103, 103n1, 110n2, 252 Stabilisation Association Agreement 66, 102–​103, 252 Kyrgyzstan 202 Labour shortages 1, 112, 302 Latvia 22n2, 206n5, 227–​228 Lebanon 66n1, 94–​95, 110, 141, 252, 305 Euro-​Mediterranean Association Agreement 66, 94–​95, 252, 305 Legal basis 11, 18, 26n1, 31–​32, 35, 72, 72n4, 85, 93, 107, 112n1, 241, 244–​247, 247n1, 249, 252–​253, 256–​259, 257n2, 261, 261n2, 264–​279, 264n3, 269n4, 283, 287–​289, 311–​313, 317 Choice 244–​245, 252 Compatibility 245, 270 Multiple 269–​270

Luxembourg 16n1, 16n5, 17n2, 22n2, 62n5, 146, 162n1, 163n4, 172, 200n1, 206n5, 207n6, 235n4, 250n1 Malta 22n2, 207n6, 235n4 Migration 1–​2, 8, 13–​17, 19–​21, 23, 25, 31, 33, 66–​67, 86, 95, 99, 108, 111–​141, 145, 148, 148n6, 163, 173, 190, 193, 198, 214, 217, 226, 228–​229, 237, 243, 249–​251, 267, 269, 282–​283, 293–​294, 302, 304–​306, 310, 314, 316 Family reunification 14, 66, 87n2, 113, 173, 243 Guest-​worker 14, 17, 173 Highly-​skilled migration 148 Irregular migration 21, 108, 198  See also illegal migration Labour migration 2, 13–​14, 19–​21, 86, 108, 112, 116, 148, 198, 249–​251, 302 Legal migration 8–​9, 13–​14, 34n3, 66–​67, 99, 108, 112–​113, 282, 305–​306  See also regular migration Recruitment stop 14 Temporary migration 119 Model agreement 11, 202, 204, 240, 243, 252, 279–​301, 313–​317 Moldova 66n3, 107–​108, 110, 141, 206n5, 257, 257n2, 305 Partnership and Cooperation Agreement 66, 107–​108, 305 Social security coordination rules  107–​108 Monaco 105n4, 106 Montenegro 66n2, 102–​105, 110, 110n2, 141, 200, 252, 305 Stabilisation and Association Council 103–​105 Stabilisation Association Agreement 66, 102–​105, 252, 305 Morocco 19, 66n1, 93–​94, 96–​102, 104, 110, 127, 140, 252, 255, 295n3, 305 Association Council 97–​100 Cooperation Agreement 93, 101 Euro-​Mediterranean Association Agreement 66, 94, 96–​102, 252, 305 Multilateral agreements  Between two states, see bilateral agreements

Index Between more than two states, see international instruments or EU Agreements National parliaments 123, 273–​274, 274n6 The Netherlands 13–​20, 14n1, 16n1, 16n5, 17n2, 22n2, 34, 40, 54–​55, 56n2, 57, 62n5, 89–​92, 124n8, 146–​188, 162n1, 192n8, 198n3, 200n1, 200–​201, 206, 206n1, 206n5, 207n6, 211, 213n3, 235–​236, 235n4, 244, 244n2, 250n1, 307 Bilateral agreements 13, 144 With India 13, 146–​161 With Turkey 13, 171–​188 With the usa 13, 162–​171 Migration profile 14–​17 Non-​contributory benefits 38–​39, 70n5, 92, 97, 103, 135, 209, 220, 254n4, 294, 294n3 oecd 16, 142, 284, 284n2 Philippines 202 Poland 16n5, 22n2, 41, 137–​138, 162n1, 163n4, 200n1, 200–​201, 227–​228 Portugal 16n1, 16n5, 22n2, 146, 162n1, 163n4, 200n1, 206n5, 207n6, 212n6, 213n3, 235n4, 250n1 Posted workers 41, 46, 49, 49n2, 117, 119–​120, 122n2, 124, 145, 147, 150, 153–​156, 154n8, 164, 167–​168, 181–​182, 244, 244n2, 295–​297, 297n1, 308 Reciprocity 88, 106, 141, 143–​144, 171, 175, 179, 187, 225, 243, 282, 285, 291, 304, 306–​308, 316 Regulation 3 26, 56–​57 Scope 26 Regulation 4 26 Regulation 1408/​71 6, 27–​28, 30–​32, 34–​36, 40–​44, 58–​63, 72, 76, 81–​84, 88, 93, 101, 131, 160, 182, 185, 207, 236, 254, 298 Regulation 574/​72 6, 72, 81, 83–​84, 88, 93, 254 Regulation 859/​2003 7, 30–​32, 35–​36, 82–​84, 174n3, 303 Regulation 883/​2004 6–​7, 9, 24–​25, 28–​62, 72–​73, 77–​78, 80, 82, 84, 91–​93, 96, 110, 118, 120, 122, 125, 131, 135, 140, 160, 188,

371 209, 246, 254, 264, 274, 281, 286, 290, 292–​294, 296–​298, 303–​304, 314–​315 Aggregation of periods of residence, work and insurance 53–​55 Conflict of laws 39–​49 Binding effect 44–​45 Competent State 39–​41, 43–​45, 47, 59 Exclusivity effect 39–​44 Lex loci laboris and exceptions 45–​49 Mandatory effect 45 Non-​competent State 41–​44 Single State rule, see exclusivity effect Equal treatment 42, 50–​53, 64 Export of benefits 55–​56 Principle of non-​discrimination, see equal treatment Relationship with other agreements  56–​65 Gottardo 63–​65, 136, 151, 187, 290 Scope 29–​32 Material scope 36–​39 Personal scope 29–​32 Special non-​contributory cash benefits 38–​39, 135, 209, 294 Regulation 987/​2009 6–​7, 24–​25, 29, 49, 72, 84, 92–​93, 110, 140, 246, 281 Regulation 1231/​2010 7, 24–​25, 30–​36, 56, 73, 82, 120, 127, 139–​141, 185, 206, 246, 264, 290, 303, 312 Scope 30, 33–​39 Material scope 36–​39 Personal scope 33–​36 Romania 17n2, 22n2, 60–​61, 78, 171, 200n1, 235n4 Russia 2n3, 34, 66n3, 68, 108–​110, 108n4, 109n2, 141, 252, 259, 281, 305 Partnership and Cooperation Agreement  66, 68, 108–​109, 252, 259, 281, 305 Social security coordination rules 109 San Marino 66, 105–​106, 110–​111, 140, 305 Agreement on Cooperation and Customs Union 66, 105–​106, 305 Association Agreement 105 EU-​San Marino Cooperation Committee 106 Social security coordination rules  105–​106

372 Index Serbia 66n2, 102–​105, 110, 110n2, 141, 201, 252, 305 Stabilisation and Association Agreement 66, 102–​105, 252, 305 Singapore 262, 272 Slovakia 16n5, 22n2, 162n1, 163n4, 171–​ 172, 200n1 Slovenia 22n2, 200n1, 201, 235n4 Social assistance 22, 38, 66n11, 114, 118, 124n8, 128–​129, 132, 134, 136–​139, 142, 208–​210, 214–​215, 220, 238, 309 Social protection 4n1, 114, 128–​129, 139, 175, 189, 196, 199, 204, 210, 216n7, 241–​242, 262, 271–​272, 272n3, 273n1, 274, 288, 310, 312 Social security branches 5, 37, 84, 88, 199, 201, 202, 211, 215 Employment injury benefits 5, 7, 37, 95–​96, 98, 115, 149–​161, 162–​171, 178–​188, 199, 207, 215, 293  See also accident at work and occupational benefits Family benefits 5, 7, 35, 37–​38, 40–​41, 43, 62, 83, 88, 90, 97, 115, 120, 122–​123, 125, 132, 149–​161, 162–​171, 172–​173, 178–​188, 199, 207, 210, 215–​216, 226, 228, 230–​231, 236, 293–​295, 303  See also child benefits Health care benefits, see medical care benefits Invalidity benefits 5, 7, 37, 58–​59, 61, 73–​74, 88, 90–​91, 96, 98, 120, 123, 125, 131, 149–​161, 162–​171, 178–​188, 199, 205, 207, 215, 223–​224, 226, 227, 236, 292–​293 Maternity benefits 5, 7, 37, 43, 97, 149–​161, 162–​171, 178–​188, 199, 207, 215, 233–​234, 293  See also paternity benefits Medical care benefits 5, 7, 37, 75–​77, 149–​161, 162–​171, 178–​188, 194, 199, 215, 293 Old-​age benefits 5, 7, 37, 52–​53, 57, 60, 62–​63, 88, 90, 96–​98, 101–​102, 108, 114–​115, 118, 120, 123, 125–​126, 131, 149–​161, 162–​171, 178–​188, 199, 205, 207, 215, 224, 227–​228, 230–​231, 234–​236, 238–​239, 292–​294, 297, 303–​304, 308  See also pension rights, pre-​ retirement benefits, statutory pensions

Sickness benefits 5, 7, 37, 40, 97, 114–​115, 149–​161, 162–​171, 178–​188, 191, 199, 207, 215, 293, 303 Survivors’ benefits 5, 7, 37, 95–​98, 102, 114–​115, 118, 120, 123, 125–​126, 131, 149–​161, 162–​171, 178–​188, 199, 205, 207, 215, 291–​294, 297, 303–​304, 308, 315  See also death grants Unemployment benefits 5, 7, 29, 37, 47, 55, 61–​62, 90, 97, 99, 101, 114–​115, 118, 125, 144, 149–​161, 162–​171, 178–​188, 199, 207, 215, 293, 295, 303 Social security schemes, see social security branches Social security coordination definition 2, 4–​5, 21 Connecting factors 3, 41–​44, 151, 180 Centre of interest 43, 46 Employment 3, 45–​48 Employer’s registered office 3, 46, 48, 153, 295 Flag of the ship 3, 48, 181 Residence 3, 42, 43–​44 Elements 3 Administrative cooperation 3–​4, 12, 96, 99, 144–​145, 150, 160–​161, 165, 170–​171, 177, 185–​187, 200, 201, 202, 281, 298–​299, 302–​303, 307, 316 Aggregation of periods of residence, work and insurance 3–​4, 8, 12, 53–​55, 65, 88, 95–​97, 99, 103–​104, 106, 108–​110, 144–​145, 150, 159–​160, 164, 170, 177, 184–​185, 187, 200, 216, 259, 281, 298, 302–​303, 307, 316 Conflict of laws 3–​4, 39–​49, 81, 104, 144–​145, 150, 152–​156, 164–​167, 176, 179–​182, 187, 202, 275, 281, 294, 295–​297, 303, 307 Negative conflict of laws 4, 39 Positive conflict of laws 4, 39 Equal treatment 3–​4, 8, 12, 25, 50–​53, 63–​65, 67, 71, 74, 81–​83, 90, 95–​96, 98, 100–​101, 103–​105, 113–​123, 125, 128–​129, 131–​132, 134, 136, 139–​140, 142, 144–​145, 150–​151, 155–​156, 157, 164, 169, 174, 176–​177, 182, 187, 194, 198, 200, 201, 206, 208–​209, 214–​216, 238–​239, 242, 251, 255, 281–​283, 294–​295, 300, 302–​307, 309, 314, 316

Index Export of benefits 3–​4, 6, 12, 20, 55–​56, 65, 80, 92, 103, 113, 115, 118, 120, 123, 125, 129, 131, 140, 144–​145, 150, 157–​159, 164, 170, 172–​174, 177, 179, 182–​184, 187, 203, 239, 251, 253–​255, 273, 281–​282, 294, 297–​298, 300, 303–​305, 307, 316 Territoriality principle 2, 2n5, 4 Social security definition 5 Social security harmonization 5, 197 Spain 16n5, 22n1, 22n2, 59, 62, 62n5, 73–​74, 76–​77, 162n1, 163n4, 200n1, 201, 201n1, 202, 206n5, 207n6, 235n4 Sweden 16n1, 16n5, 17n2, 22n2, 54, 146, 149n6, 162n1, 163n4, 171, 200n1, 201, 202, 207n6, 208, 213n3, 244, 244n2, 250n1, 297 Switzerland 1n3, 20, 20n2, 36, 54, 62–​63, 78–​85, 109–​111, 140–​141, 163n4, 224, 265, 300n1 EU-​Swiss Agreement 65, 68, 78–​85, 109–​110, 270 Free Trade Agreement 78 Institutional Framework Agreement 80 Joint Committees 79 Sectoral Agreements 78 Agreement on the Free Movement of Persons 78–​83 Social security coordination rules  81–​85 Swiss Confederation, see Switzerland Swiss nationals 122n2, 124 teu 241, 244–​245, 274–​277, 288 Article 3 teu 241, 274, 288 Article 5 teu 244 Article 20 teu 274–​277 Article 21 teu 241, 262 Article 47 teu 245 tfeu 22, 31–​32, 35, 41–​42, 50, 53, 63–​64, 69, 72–​73, 84–​86, 93, 137, 174, 204, 217, 241, 245–​249, 253, 256–​262, 264–​278, 283, 288–​289, 309, 311–​313, 316 Article 3 tfeu 246 Article 9 tfeu 241, 288, 316 Article 18 tfeu 64 Article 21 tfeu 22, 262 Article 45 tfeu 31, 41–​42, 50, 63–​64, 69, 72

373 Article 48 tfeu 26n1, 31, 41–​42, 53, 69, 72–​73, 84–​85, 93, 256–​257, 264–​271, 276, 278, 312 Article 79 tfeu 32, 32n3, 32n5, 35, 72–​73, 85, 111n3, 116n1, 124n1, 194, 257n1, 257n3, 264n4, 265, 267–​271, 276, 278, 312–​313 Article 151 tfeu 203n5, 204, 217, 238n2, 271–​272, 272n3, 288, 288n2, 309 Article 153 tfeu 137, 137n3, 271–​273, 272n3, 273n1, 276, 278, 288–​289, 288n1, 312 Article 207 tfeu 246, 247n1, 253, 261–​262, 262n4, 263n2, 277 Article 208 tfeu 253, 260n2 Article 209 tfeu 246, 259–​261, 277 Article 212 tfeu 246, 253, 259–​261, 277 Article 216 tfeu 245, 246n1, 265–​267, 272, 276–​277, 311–​312 Article 217 tfeu 85, 93, 246, 253, 253n3, 256–​258, 257n1, 266–​267, 277, 311–​312 Article 218 tfeu 72n2, 72n4, 84, 247, 247n1, 247n2, 247n3, 247n4, 247n5, 248–​249, 248n3, 248n4, 249n1 Article 258 tfeu 174, 283 Article 263 tfeu 84 Article 292 tfeu 289 Article 326–​334 tfeu 274–​277, 278 Article 352 tfeu 273–​274, 273n2, 273n4, 273n5, 274n1, 274n2, 274n6, 276, 278 Third countries definition 1n3, 22 Tunisia 8, 66n1, 93–​94, 96–​101, 104, 110, 132, 127, 140, 252, 255, 281, 305 Association Council 97–​100, 281 Cooperation Agreement 93, 101 Euro-​Mediterranean Agreement 8, 66, 94, 96–​102, 252, 281 Turkey 7–​8, 13–​14, 16–​20, 65, 67n2, 68n1, 85–​93, 86n3, 110, 127, 140, 142, 144, 146, 162–​163, 171–​188, 192n8, 194, 194n4, 198n3, 200, 206, 206n1, 206n5, 207, 207n6, 211, 212n6, 227, 230–​231, 235n4, 240n2, 243, 248–​249, 251–​255, 257–​258, 260, 265–​266, 268–​269, 281, 284, 300, 305–​308, 310, 312 Ankara Agreement, see EU-​Turkey Agreement Bilateral agreements 13, 144, 171–​188 With Belgium 13, 171–​188 With Germany 13, 171–​188

374 Index Turkey (cont.) With the Netherlands 13, 171–​188 With other Member States 17n2, 171–​172 EU-​Turkey Agreement 7, 14–​15, 65, 85–​93, 144, 174, 243, 248, 251, 252, 254–​255, 257, 260, 264–​265, 267, 281, 300, 305 Additional Protocol 86–​88, 248 Ankara Agreement, see EU-​Turkey Agreement Association Council 8, 86, 88, 92–​93, 248, 251, 253–​255, 257, 260 Decision 1/​80 87, 127 Decision 3/​80 7–​8, 20, 87–​93, 144, 174–​188, 207, 243, 248, 251, 252–​255, 257, 260, 265, 281, 300, 305–​307 Direct effect 90–​92 EU-​Turkey Association Agreement, see EU-​Turkey Agreement Social security coordination rules 87–​93, 251 EU-​Turkey Association Agreement, see EU-​Turkey Agreement Migration profile 16–​17 Ukraine 34, 66n3, 107–​108, 110, 141, 231, 257, 305 Partnership and Cooperation Agreement 66, 107–​108 Social security coordination rules  107–​108 The United Kingdom 2n3, 16n5, 17n2, 22n2, 31n2, 32n5, 35–​36, 51, 56n2, 62n5, 72, 84–​85, 93, 111n3, 137–​138, 137n5, 143, 162n1, 163n3, 163n4, 171, 200n1, 207n6, 229–​230, 234n5, 236, 257n3, 265, 268, 270–​271, 270n5

United Nations 10, 12, 148, 189–​195, 238, 240, 284 International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families (icrmw) 190, 193–​195 International Covenant on Civil and Political Rights (iccpr) 190–​192, 193 International Covenant on Economic, Social and Cultural Rights (icescr) 190–​193 UN Committee on Economic, Social and Cultural Rights 192–​193 UN General Assembly 190, 193 Universal Declaration of Human Rights 190–​191, 193, 195 The usa 2n3, 13, 14, 16, 16n5, 18–​20, 55, 142, 144, 146, 162n1, 162–​171, 174, 178–​179, 187–​188, 192, 192n8, 198n3, 206, 249–​251, 258–​259, 261, 265, 284, 292, 296–​297, 300–​301, 307–​308 Bilateral agreements 13, 144 With Belgium 13, 162–​171 With Germany 13, 162–​171 With the Netherlands 13, 162–​171 With other Member States 16n5, 162n1 Migration profile 16 Transatlantic Partnership 14, 250, 258 Transatlantic Trade Investment Partnership (ttip) 250 Voting  Qualified majority voting 32n3, 32n6, 247 Unanimity 32, 32n3, 32n6, 112n1, 126n4, 247, 274, 288 World Trade Organisation (wto) 242, 263

newgenprepdf

Studies in EU External Relations Edited by Marc Maresceau 1 The European Union at the United Nations: The Functioning and Coherence of EU External Representation in a State-​ centric environment, Maximilian B. Rasch (2008) 2 From Soviet Republics to EU Member States: A Legal and Political Assessment of the Baltic States’ Accession to the EU (2 vols), Peter van Elsuwege (2008) 3 The EU and Cyprus: Principles and Strategies of Full Integration, Stéphanie Laulhé Shaelou (2009) 4 Evolving Practice In EU Enlargement With Case Studies In Agri-​Food And Environment Law, Kirstyn Inglis (2010) 5 International Law as Law of the European Union, Edited by Enzo Cannizzaro, Paolo Palchetti, and Ramses A. Wessel (2011) 6 The European Union’s Emerging International Identity: Views from the Global Arena, Henri de Waele (2013) 7 EU Peacebuilding in Kosovo and Afghanistan: Legality and Accountability, Martina Spernbauer (2014) 8 EU Management of Global Emergencies: Legal Framework for Combating Threats and Crises, Edited by Inge Govaere and Sara Poli (2014) 9 Good Neighbourliness in the European Legal Context, Edited by Dimitry Kochenov and Elena Basheska (2015) 10 The EU-​Ukraine Association Agreement and Deep and Comprehensive Free Trade Area: A New Legal Instrument for EU Integration Without Membership, Guillaume Van der Loo (2016) 11 European External Action Service: Promoting Coherence through Autonomy and Coordination, Mauro Gatti (2016) 12 The EU and the Security-​Development Nexus Bridging the Legal Divide, Hans Merket (2016) 13 The EU as a Global Actor -​Bridging Legal Theory and Practice Edited by Jenő Czuczai and Frederik Naert 2017 14 The Future of International Competition Law Enforcement: An Assessment of the EU’s Cooperation Efforts, Valerie Demedts (2018) 15 The External Dimension of EU Social Security Coordination: Towards a Common EU Approach, Pauline Melin (2019)