Transcript Social tourism possible?

organising training and setting up networks on the
European Coordination of Social Security Schemes
in the 27 Member States
National trESS Seminar
Access to non-contributory benefits and
the link to the residence Directives
(Social tourism in Europe?)
Nicosia 24.9.2012
Bernhard Spiegel
Main issues
•History:
•Special non-contributory benefits in cash
•Special coordination
•Residence Directives
•Minimum benefits – open issues:
•Social tourism possible?
•Legal questions and problems
•Political dimension
•Way forward
•Different possibilities
Bernhard Spiegel
Preliminary remarks
•Role as a visiting trainer:
•Other perspective than pure national
•Austrian experiences but also trESS perspective
•Special wishes and situation in the guest country
•Hope you do not mind some open remarks
•Cyprus:
•Terra incognita?
•No ECJ cases up until now
•Problems – if any, applicable legislation
•Different attitude towards EU ?
•Austria: Questions and problems: Let’s look for a European solution!
•Many notes,
•Many preliminary rulings before the ECJ
•All non exportable benefits checked by the ECJ
•Many other Member States; only national decisions; no preliminary
rulings
Bernhard Spiegel
History – problems with mixed-type benefits
• Starting point:
– Benefits are covered by Reg. 1408/71 [883/2004]
• If legal entitlement
• If related to one of the risks enumerated in the material
scope
– Social assistance excluded
• ECJ included social assistance benefits
– Under national systematic, social policy, financing
mechanism etc.
• E.g. Italian social pension (C-139/82, Pscitello)
• E.g. French special allowance for the elderly (C-157/84,
Frascogna)
– Equal treatment and export
Bernhard Spiegel
History – solutions found
• Reg. 1247/92 Special coordination
– Special non-contributory benefits in cash
– Possibility to list in Annex IIa Reg. 1408/71 [Annex X Reg.
883/2004], then
• No export
• But, equal treatment and assimilation of facts - e.g. Art. 10a Reg.
1408/71 [Art. 5 Reg. 883/2004]
– If not listed: Export!
– Nearly all MS have listed their benefits
– Cyprus:
• Social pension
• Sever motor disability allowance
• Special grant for blind persons
Bernhard Spiegel
History – new problems
• ECJ starts examination
– What is special?
– Austria all benefits checked
• C-160/02, Skalka, compensatory supplement – Yes!
– Minimum pension; Top-up of Austrian pensions below 784 €
• C-215/99, Jauch, Federal long-term case allowance – No!
• C-286/03, Hosse, Provincial long-term care allownace – No!
• New problems
– All (?) long-term care benefits are wrongly listed in the Annex
– Only mobility part can stay there (C-299/05, Commission against
Parliament and Council, C-537/09, Bartlett)
– Free movement of workers could oblige to export in special cases (C287/05, Hendrix)
– What exactly is „non-contributory“?
• C-215/99, Jauch, no „tricks“ of national legislator
Bernhard Spiegel
Residence Directives
• Directive 2004/38/EC (EU Citizens)
– [non actives] right to reside, when
• Health care coverage which covers all risks
• Sufficient means of subsistence not to become a financial burden for social assistance of
the [new] MS of residence
• Additional clarifications:
– Claiming social assistance itself is no reason for automatic expulsion (C456/02, Trojani);
– As long as a person is legally tolerated on the territory, equal treatment
also with regard to social assistance (C-456/02, Trojani);
– MS can request special link to the MS before granting social benefits (up
to 5 years e.g. for study grants – C-158/07, Förster);
– Minimum benefits for jobseekers cannot be regarded as social assistance
for the Dir. (C-22/08 and C-23/08, Vatsouras and Koupatantze).
• Other Directives (e.g. 2003/109/EC for long-term resident third
country nationals) – similar principles
Bernhard Spiegel
Minimum benefits – open issues
• Is “social assistance” under European Law always the same?
– Not under Reg. 883/2004 but under Dir. 2004/38?
• Is it possible to provide for further conditions for entitlement
to benefits?
– 5 years residence for student grant (ECJ C-158/07, Förster)
– Ordinary residence for job seekers grant (ECJ C-138/02, Collins)
• What is the effect of Art. 5 Reg. 883/2004 (Assimilation of
facts)?
– Immediately or only after close relationship to MS? Is it necessary that
national legislation provides for it or only interpretation?
• If “social assistance” for Dir. 2004/38 only expulsion or denial
of benefit if residence “tolerated” (ECJ C-456/02, Trojani)?
• Different opinions of MS/EC/academic world (trESS Think
Tank report 2008, trESS Analytic Study 2011)
Bernhard Spiegel
Room for manoeuvre?
• C-503/09, Stewart, concerning UK work incapacity
allowance for the non-active
• National conditions:
– Residence and stay in the UK when claiming
– Oridinary residence in the UK
– Stay in UK during 26 weeks within last 52 weeks
• Special link can be requested:
– But, duration of stay not proportional as other aspects could
speak for the link
• New case C-140/12, Brey will bring more clarity
– In Austria legal residence required for compensatory
supplement
Bernhard Spiegel
Political dimension
• Interdependence between Reg. 883/2004 and Dir.
2004/38 has not been seen;
• More and more questions, national cases, uncertainties
• Social tourism allowed? [Brey case]
• Initiative of 13 Social Ministers during EPSCO-meeting
(17.6.2011)
• trESS study 2011 on social security for moving non
actives
• Infraction procedure (UK – habitual residence e.g. for income
support or state pension credit)
• Questionnaires to MS
Bernhard Spiegel
Way forward
• Action plan of the AC Secretariat:
–
–
–
–
Elaboration of guidelines, glossary
Precision on „residence“ – when is it transferred?
Measures to combat fraud and error
Collection of statistics
• Ad-hoc Group of the AC
• High ranking meeting started by the UK
• Legislative changes:
– In Reg. 883/2004?
– In Dir. 2004/38?
– National legislation?
• Wait for new ECJ cases?
Bernhard Spiegel
Problems to overcome
• Is the whole problem well analysed in MS?
• How many cases are involved?
– Lack of statistical data
– It seems to be a more political than quantitative problem (e.g.
in Austria 235.000 pensioners receive the compenatory
supplement; only 980 drawing only a EU-pension)
• Limits by the TFEU
• National or European solutions?
Bernhard Spiegel
Figures from Austria – compensatory
supplement
Countries
03.2009
12.2009
12.2010
12.2011
06.2012
Bulgaria
10
17
53
81
93
Germany
344
366
391
424
433
Poland
34
36
50
61
71
Romania
16
31
100
151
200
Switzerland
14
15
22
28
29
Czech Rep.
2
2
3
4
5
Hungary
7
10
16
30
33
23
25
29
34
32
498
555
734
889
980
UK
All MS
Short summary
• More clarity is needed - more questions than
answers
• It is getting more complex
• Danger: MS apply EU-rules differently
• Questions of coordination of social security
are becoming more and more political
• There is still a lot to do!
Thank you for your attention!
Bernhard Spiegel