EURES IE/NI Cross Border Partnership. Dympna Boyle EURES Ireland/Northern Ireland Cross Border Coordinator

Transcription

1 EURES IE/NI Cross Border Partnership Dympna Boyle EURES Ireland/Northern Ireland Cross Border Coordinator

2 Objectives To help citizens access employment opportunities, and to provide information on employment related issues eg social security information on both sides of the border. To help employers by providing them with access to the larger pool of labour in this cross border region. Advice is also provided to employers on a range of crossborder recruitment issues.

3 Priorities Promote the recruitment of people living in the Border region Address skills mismatches and employment bottlenecks in the region Provide information and recruitment service for employers, workers and jobseekers

4 Cross Border Region What region is covered by the Partnership? The Partnership covers all of Northern Ireland(Antrim, Derry, Tyrone, Armagh, Down & Fermanagh and the border counties of the Republic of Ireland (Louth, Cavan, Monaghan, Donegal, Sligo and Leitrim).

5 Who is involved? Who are we? There are seven organisations, from both sides of the border, represented on the Partnership. These are (in alphabetical order):- Confederation of British Industry (CBI) Department for Communities (DC) Department of Social Protection (DSP) Dundalk Chamber of Commerce Irish Business and Employers Confederation (IBEC) Irish Congress of Trade Unions (ICTU) Londonderry Chamber of Commerce

6 Activities Forum for Cross Border PES/EURES managers Advisory & Recruitment Service New! On line Jobs Fair for ICT & Language skills shortages Belfast October On site Job Fairs in the Border region SME supports events Cross Border Social Security Tax breakfasts Website being developed Information packs & FAQ booklet on Mobility in the IE/NI Border Region

7 EURES Advisers in the Partnership Lee Downey Employer Engagement Unit, Department of Social Protection, Letterkenny 00 (353) Stephen Hanna Employer Engagement Unit, Department of Social Protection, Dundalk 00(353) Anne-Marie Bingham EURES- Department for Communities Belfast 00 (44)

8 EURES advisers in the Partnerships Paula Kane EURES Department for Communities, Belfast 00(44) Sinead McLaughlin Londonderry Chamber of Commerce Tel Brenda McGeeney Dundalk Chamber of Commerce 00(353)

9 Thank you! The Partnership receives financial support from the European Union Programme for Employment and Social Innovation "EaSI" ( ). For further information please consult:

10 Latest developments in the field of Social Security Coordination FreSsco Seminar Dublin, Ireland - 26 May 2016 Iva Rusan Directorate-General for Employment, Social Affairs and Inclusion Unit D2 Social Security Coordination

11 - Overview - 1) Activities of the Administrative Commission 2) Ongoing work in the field of applicable legislation 3) Recent case-law 4) Electronic Exchange of Social Security Information (EESSI)

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13 Administrative Commission second half 2015 and first half 2016 Adoption of new Decisions already published in the Official Journal (OJ C 52, , p 11 and 13) o Decision No F2 of 23 June family benefits o Decision No H7 of 25 June 2015 amending Decision H3 of 15 October rates of conversion Adoption of new Decisions to be published in the Official Journal Decision No H8 of 17 December 2015 rules for the Technical Commission

14 Reflection Forum on the EU Social Security Coordination in 2020 and beyond 5 th Reflection Forum 8 March 2016 dedicated to the topic of activation measures new trends and developments in MS activation measures and their cross-border dimension practical issues of social security coordination emanating from the interaction between national activation measures and the EU coordination rules activation measures and changes in applicable legislation

15 Ongoing work in the field of applicable legislation

16 Ad hoc Group on Posting Issues set up by a decision of the Administrative Commission of December 2014 the Ad-Hoc Group s mandate was not related to the targeted review of the Posting of Workers Directive 96/71/EC but it was entirely focused on issues raised in the context of posting within the meaning of Regulation (EC) No 883/2004

17 Ad hoc Group on Posting Issues the Report was finalised 3 May 2016 proposals for solutions on applicable legislation, conciliation procedure and administrative problems with PDA1 recommendations for interpretation of provisions of the Regulations, Administrative Commission Decisions and the Practical Guide on Applicable Legislation identifies some unresolved problems discussion of the Working Party on 2 June 2016 and in the Administrative Commission in June 2016

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19 Case C- 12/14 Commission vs Malta and C-284/15 (ONEm) C- 12/14 : Declarations made by MS listing the laws/schemes covered by the EU rules create a presumption that the listed laws/schemes are covered by the said rules and that those laws/schemes not listed are outside the scope of the Regulation as long as the declarations made by a MS are not amended/withdrawn, the other MS must take them into account C-284/15 : application for a partial unemployment benefit supplementing income Article 3 of Regulation (EC) 1408/71 cannot be applicable where the same regulation contains specific provisions such as Article 67 which governs the entitlement to unemployment benefits for unemployed persons.

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21 EESSI Some Key Facts Over 14 million EU citizens living in another Member State, all insured persons are potential beneficiaries of social security coordination rules Over 8,500 institutions connected through Access Points, (60+) allowing messages to be communicated between Countries and National Institutions Several million messages are anticipated to be exchanged each year Over 100 business processes have been identified requiring 300+ Structured Electronic Documents (SEDs) to complete exchanges Master Directory with provide details of the relevant institutions Solution must bridge the many different IT-systems and business processes operated within the institutions 12

22 EESSI - high level steps towards delivery

23 Approval of Architecture pack v1.0 at the Administrative Commission 21/6/2016 Delivery of Pilot Build 3 for external testing 21/10/2016 Delivery of Integration Ready Release 23/12/2016 Delivery of Production Ready Release for external testing 12/5/2017 AC Fit for Purpose EESSI Decision 29/6/ Month National Implementation Period Starts 3/7/ Month National Implemen-tation Period Ends 2/7/ Jun Oct 2017 Jun Oct 2018 Jun Oct 2019 Jun 2019 High Level Timeline for IT Deliverables

24 Thank you for your attention! Visit

25 Francisco Pérez Flores DG Employment, Social Affairs and Inclusion Unit D1. Free movement of workers, EURES Recent developments concerning free movement of workers and posting of workers FRESSCO SEMINAR Dublin 26 May 2016

26 Overview Transposition of Directive 2014/54 (Enforcement Free Movement of workers) Regulation 2016/589 (New EURES Regulation) Transposition of Directive 2014/67 (Enforcement posting of workers) Review of Directive 96/71 (Posting of workers) Recent case law

27 Main Features of new Directive on facilitating the exercise of rights in the context of free movement of workers 1. Specific measures to ensure effective protection of rights conferred by Art 45 TFEU and Regulation (EU) No 492/ National body or bodies must exist to provide assistance to Union workers (including jobseekers) and their family members; 3. Promotion of dialogue 4. Better information provision at national level;

28 State of play of transposition 23/05/2016 NIM by Member State NIM by Member State Collapse all / Expand all Transposition deadline(s) Number of NIM Belgium 21/05/ Bulgaria 21/05/ Czech Republic 0 Denmark 0 Germany 0 Estonia 0 Ireland 21/05/ Greece 0 Spain 21/05/ France 0 Croatia 0 Italy 21/05/ Cyprus 0 Latvia 21/05/ Lithuania 21/05/ Luxembourg 0 Hungary 0 Malta 0 Netherlands 21/05/ Austria 21/05/ Poland 0 Portugal 0 Romania 21/05/ Slovenia 0 Slovakia 21/05/ Finland 0 Sweden 21/05/ United Kingdom 0

29 Regulation 2016/589 (New EURES Regulation).Key improvements A stronger network of European employment services at EU level that delivers more efficient labour market information exchange for the purpose of matching processes across borders in the EU/EEA, in support of the internal market Enhanced transparency: more jobs advertised; Online skills-based matching: JV CV; Reinforced scope: more service providers; An agreed minimum package of services for job seekers and employers in all MS 5

30 Main Features of new Directive on posting sets more ambitious standards improves cooperation between national authorities clarifies the definition of posting defines Member States responsibilities establishes a list of national control measures improves the enforcement of rights ensures that administrative penalties and fines can be enforced in another MS

31 The proposal for the amendment of the Posting of workers directive. Main changes Remuneration Long-term posting Sub-contracting chains Temporary agency workers 7

32 What are the changes? On remuneration Directive 96/71/EC Posted workers should be guaranteed the terms and conditions of employment covering the following matters which are laid down by law and/or by collective agreements which have been declared universally applicable within the meaning of paragraph 8: (c ) the minimum rates of pay, including overtime rates; Proposal Posted workers should be guaranteed the terms and conditions of employment covering the following matters which are laid down by law and/or by collective agreements which have been declared universally applicable within the meaning of paragraph 8: (c ) remuneration, including overtime rates. Remuneration means all the elements of remuneration rendered mandatory in the host MS. 8

33 In practice, what is the difference? Any element of remuneration which is provided for by law or by the applicable collective agreement will have to be granted to posted workers. It includes elements such as bonuses or allowances (e.g. Christmas bonus) or pay increases according to seniority, etc. 9

34 What are the changes? On long-term posting Directive 96/71/EC Posting is temporary ("for a limited period") No minimum or maximum duration Derogations possible for shortterm posting No specific rule for long-term posting Proposal Posting is temporary ("for a limited period") No minimum or maximum duration Derogations possible for shortterm posting Specific rule for long-term posting: if the posting is envisaged or effectively lasts for more than 24 months, the host MS is deemed to be the country in which the work is habitually carried out. 10

35 In practice, what is the difference? By application of the rules of the Rome I Regulation, the labour law of the host Member Sate will apply to the employment contract of such posted workers if no other choice of law was made by the parties. If a different choice was made, it cannot, however, have the result of depriving the employee of the protection afforded to him by provisions that cannot be derogated from by agreement under the law of the host Member State. 11

36 What are the changes? Subcontracting chains Nothing. Directive 96/71/EC Proposal MS have the option to impose that the conditions applied by the main contractor are also respected by all the undertakings in a subcontracting relationship with this company. Important condition: this needs to be done in a non-discriminatory way, i.e., it has to apply in the same way to both national and cross-border subcontractors. 12

37 In practice, what is the difference? It is not restricted to erga omnes collective agreements Collective agreements at the level of the undertaking, if any, would be applicable to the subcontractors. 13

38 What are the changes? Temporary agency workers Directive 96/71/EC Member States may provide that temporary agency workers are guaranteed the terms and conditions which apply to temporary workers at national level. Directive 2008/104/EC: Article 5 The basic working and employment conditions of temporary agency workers shall be, for the duration of their assignment at a user undertaking, at least those that would apply if they had been recruited directly by that undertaking to occupy the same job. Proposal Member States shall provide that temporary agency workers are guaranteed the terms and conditions which apply pursuant to Art. 5 of Directive 2008/104/EC. 14

39 In practice, what is the difference? Makes mandatory what is currently an option By referring to Article 5 of Directive 2008/104/EC, derogations are also applicable Would require legislative change in 13 MS: AT, CY, EE, EL, FI, HR, HU, IE, LV, PL, PT, SI and SK) 15

40 C C-299/14. Garcia-Nieto, The facts Mr Joel Peña Cuevas and his son are Spanish nationals who arrived in Germany at the end of June 2012 to join Ms García- Nieto and her daughter (whose father is Mr Peña Cuevas). The latter, who are also Spanish nationals, had arrived in Germany in April During the first months of their residence, the family resided with Ms García-Nieto s mother and their living expenses were met from the income of Ms García-Nieto, who had found work in June Mr Peña Cuevas also took up temporary employment or received unemployment benefit, in part on the basis of periods of insurance which he had completed in Spain.

41 C - C-299/14. The Question whether Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 must be interpreted as precluding legislation of a Member State under which nationals of other Member States who are residing in the member State for up to 3 months are excluded from entitlement to certain special non-contributory cash benefits within the meaning of Article 70(2) of Regulation No 883/2004, which also constitute social assistance within the meaning of Article 24(2) of Directive 2004/38.

42 C -299/14.. The The reply of the ECJ Article 24 of Directive 2004/38 and Article 4 of Regulation No 883/2004 must be interpreted as not precluding legislation of a Member State under which nationals of other Member States who are in a situation such as that referred to in Article 6(1) of that directive are excluded from entitlement to certain special non-contributory cash benefits within the meaning of Article 70(2) of Regulation No 883/2004, which also constitute social assistance within the meaning of Article 24(2) of Directive 2004/38.

43 Thank you for your attention!!! More information: atid= angid=en

44 Free movement & social security Which social security legislation is applicable when a person moves to work in another Member State? Malcolm Scicluna 26 May 2016

45 Overview EU social security coordination Why & how? Free movement & applicable legislation General rules & exceptions Unusual business set-ups CJEU cases Decision A2 Some quick statistics

46 Overview Disagreements between Member States Dialogue & conciliation procedure Conciliation Board Recent cases Concluding remarks Are rules still relevant in today s reality?

47 EU social security coordination: why & how?

48 EU social security coordination Why? free movement of workers (FMOW) fundamental right of EU citizens FMOW essential for effective operation of the common market fundamental differences between national schemes disparities an obstacle to FMOW

49 EU social security coordination How? EU Regulation 3/ /71 883/2004 directly applicable in the Member States take priority over national law no need to change national legislation coordination of national social security systems by EU legislation a unique system in the world purpose: to overrule principle of territoriality by MS various amendments mainly inspired by CJEU case-law

50 EU social security coordination

51 EU social security coordination Basic principles Equality of treatment Prohibition of discrimination on grounds of nationality Determination of applicable legislation Payment of social security contribution in only one MS Export of benefits Payment of benefits anywhere in the EU

52 EU social security coordination Basic principles Aggregation (totalisation) of insurance/residence periods in any MS to satisfy any national contribution/residence tests Administrative cooperation between the competent authorities of the MS

53 Free movement & applicable legislation

54 Free movement & applicable legislation Questions: Where do I pay social security contributions? Which MS will pay my social security benefits/health care? Overarching rule: Only the legislation of one MS applies determined in accordance with Title II (Art )

55 Free movement & applicable legislation Basic principle: lex loci laboris the state-of-work principle Article 11 of 883/2004: a person pursuing an activity as an employed or self-employed person in a Member State shall be subject to the legislation of that Member State Applicable for active persons Employed Self-employed

56 Free movement & applicable legislation good but not always appropriate! cross-border workers workers sent by their employer to perform a welldefined task in another Member State workers employed in different Member States simultaneously workers who in alternation exercise one or more separate activities in different Member States

57 Free movement & applicable legislation so some exceptions were introduced: Art. 11 Civil servants, seafarers, aircrew, non-active persons, etc. Art. 12 Posting Art. 13 Pursuit of activities in two or more Member States Art. 16 Exceptions/Agreements

58 Free movement & applicable legislation Art. 11 General rules Art b - Civil servants a civil servant shall be subject to the legislation of the Member State to which the administration employing him/her is subject

59 Free movement & applicable legislation Art. 11 General rules Art e non-active persons any other person to whom subparagraphs (a) to (d) do not apply shall be subject to the legislation of the Member State of residence

60 Free movement & applicable legislation Art. 11 General rules Art mariners an activity as an employed or self-employed person normally pursued on board a vessel at sea flying the flag of a Member State shall be deemed to be an activity pursued in the said Member State.

61 Free movement & applicable legislation Art. 11 General rules Art aircrew An activity as a flight crew or cabin crew member performing air passenger or freight services shall be deemed to be an activity pursued in the Member State where the home base, as defined in Annex III to Regulation (EEC) No 3922/91, is located.

62 Free movement & applicable legislation Art. 12 Posting: Special Rules a temporary interruption of activities encourages FMOW and services & avoids unnecessary & costly administrative complications maintain attachment to scheme of MS in which employer normally operates normally carries out its activities in that MS maintains direct relationship anticipated duration does not exceed 24 months not sent to replace another posted person

63 Free movement & applicable legislation Art. 12 Posting: Special Rules Habitual MS of work Temporary MS of work

64 Free movement & applicable legislation Art. 12 Posting: Special Rules may not be used to staff enterprises or contracts on an ongoing basis through repeated postings may include persons recruited with a view to be posted as long as he/she is attached to social insurance system of MS of employer for at least one month a priori ruled out: If worker is placed at the disposal of another undertaking Worker recruited in MS A to be sent by an undertaking in MS B to an undertaking in MS C applies also to self-employed if person normally self-employed

65 Free movement & applicable legislation Estimated hourly labour costs, 2014 Source: Eurostat Wages & Labour costs, March 2015

66 Free movement & applicable legislation Unusual set-ups: letterbox companies no substantial activities in host MS except administrative work a firm that is set up with the intention of circumventing legal and conventional obligations. Examples of these are taxation, social security, VAT and wages. These companies do not actually perform any real economic activities although claiming to do so.

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70 Free movement & applicable legislation Unusual set-ups: replacements Worker posted to replace another posted worker Unlimited time contracts manned with posted employees from another MS

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72 Free movement & applicable legislation Landmark Court cases in the field of applicable legislation 35/70 Manpower C-178/97 C-202/97 C-404/98 C-2/05 Banks Fitzwilliam Plum Herbosch Kiere

73 Free movement & applicable legislation Decision A2 of the Administrative Commission

74 Free movement & applicable legislation Decision A2 to facilitate the freedom to provide services to avoid administrative complications the existence of a direct relationship between employer/employee & its maintenance throughout the posting period responsibility for recruitment, employment contract, remuneration, dismissal, authority to determine nature of work etc.

75 Free movement & applicable legislation Decision A2 undertakings normally carrying out their business in the MS whose legislation remains applicable registered office, administration & administrative staff, place where majority of contracts with clients are concluded, the law applicable to the employment contracts & clients, turnover [not an exhaustive list]. in case of self-employed, use of office space, paying taxes, registration with professional bodies, VAT registration

76 Free movement & applicable legislation Decision A2 subject to MS s legislation immediately before the start of his employment indication of 1 month. Self employed activity for at least 2 months. posting may be to one or more undertakings in the same MS posting to different MS shall be treated as new posting Two months between two postings

77 Free movement & applicable legislation Art. 13 employment in 2 or more MS A person who normally pursues an activity as an employed person in two or more Member States shall be subject to... Article 12 Article 13 Occasional Ad hoc missions Ongoing in time Simultaneous or in alternation

78 Free movement & applicable legislation Employed substantial in MS residence Legislation MS residence Working in MS employed person 1 employer (or in 1 MS) Legislation MS employer(s) Not substantial in MS residence Employer outside EEA / CH employers in 2 MS, of which 1 in MS residence employers, min. 2 in MS not residence Legislation MS residence Legislation MS employer not residence Legislation MS residence

79 Free movement & applicable legislation Self-employed Working in MS self-employed person substantial in MS residence Not substantial in MS residence Legislation MS residence Legislation MS centre of intrest activities

80 Employed & self-employed Free movement & applicable legislation Employed in 1 or MS Selfemployed in 1 or MS Legislation MS competent for the employed activities

81 Free movement & applicable legislation 2 indicators to take into account Disregarding MARGINAL activities in a MS accounting for less than 5% of remuneration and/or regular working time SUBSTANTIAL activities means at least 25% or remuneration and/or working time

82 Free movement & applicable legislation Employee resides in Spain Works for a Portuguese employer 88% Portugal 4% Spain 4% France 4% Luxembourg SPAIN or PORTUGAL?

83 Free movement & applicable legislation Employee resides in Belgium Employer in Germany 20% Belgium 20% Germany 20% France 20% Netherlands 20% Turkey GERMANY or BELGIUM?

84 Free movement & applicable legislation Employee resides in Belgium Works 50% for French employer in France Works 50% for Belgian employer 20% Belgium 30% business trips in third countries FRANCE or BELGIUM?

85 Free movement & applicable legislation Employee resides in Ireland Works 20% for Irish employer Self-employed 50% in the UK Works 30% in France for French employer IRELAND or UK or FRANCE?

86 Free movement & applicable legislation Where is an employer established? registered office or place of business No brass plate operations Several criteria: where the essential decisions of the undertaking are adopted and where the functions of its central administration are carried out. Majority of contracts with clients Company policy and operational matters Principal financial functions Place where workers are recruited

87 Free movement & applicable legislation What to do when expectations exceed reality?

88 Free movement & applicable legislation Overall assessment Check all facts Ping-pong is not good Obligation to inform when situations changes Common sense Verify future intentions/working patterns

89 Free movement & applicable legislation When everything goes totally wrong

90 Free movement & applicable legislation Art the Escape Clause Two or more Member States may By common agreement Provide for exceptions To Articles In the interest of certain persons or categories of persons

91 Free movement & applicable legislation Art the Escape Clause Commonly used for: Derogation on the maximum posting period (up to 5 years) Legalising past situations (payment of contributions in the wrong Member State) Derogation on other conflict rules in special and worthy cases

92 Free movement & applicable legislation Some quick statistics

93 Free movement & applicable legislation PDs A1 issued, breakdown by type, total, , ,794 Flight or cabin crew members according to Art. 11 (5) Posting according to Art. 12 1,453,385 Active in 2 or more Member States according to Art. 13 Other - e.g. Art. 16 agreement In 2014 a total of 1.92 million PDs A1 were issued

94 Free movement & applicable legislation Posting of workers according to Art. 12 Main sending Member States: Poland (266,745) Germany (232,776) France (119,727) Main receiving Member States Germany (414,220) France (190,848) Belgium (159,753)

95 Free movement & applicable legislation Annual growth rate, Number of PDs A1 issued 1,600,000 1,400,000 1,200,000 1,000, , , , , Posting according to art. 12 Active in 2 or more Member States according to Art. 13 Other - e.g. Art. 16 agreement

96 Disagreements between Member States?!

97 Disagreements between MS Dialogue and conciliation procedure Dialogue between institutions - Phase 1 Obligatory Max 6 months Dialogue between competent authorities - Phase 2 Optional Max 6 weeks Conciliation Administrative Commission Conciliation Board Optional Max 6 months

98 Disagreements between MS Conciliation Board Assist the work of the Admin. Commission in cases of differing interpretation between MS Dialogue & conciliation procedure when: Validity of a document or the accuracy of facts on which the document is based (Art. 5 IR) The determination of applicable legislation (Art. 6(1) IR) Or about which institution should provide benefits in cash or in kind

99 Disagreements between MS Conciliation Board On request of the Admin. Commission & agreement by the parties involved to: reconcile differing interpretations provide a legal opinion Consensus (+ minority view if no consensus) The Conciliation Board shall consist of a maximum of 12 volunteers nominated by national Administrative Commission delegations and appointed by the Administrative Commission for a term of 24 months.

100 Disagreements between MS Conciliation Board Recent cases: Belgium and Gibraltar (UK) Whether workers concerned, prior to their posting, had been subject to the social security legislation of Gibraltar Whether the posting company ordinarily performed substantial activities in Gibraltar Whether a direct relationship existed during the posting period between the workers and the posting company

101 Disagreements between MS Conciliation Board Recent cases: Austria and Poland Three issues concerning the interpretation of Article 13: The definition of employer The definition of registered office or place of business The condition of substantial activity by the employer

102 Disagreements between MS Conciliation Board Recent cases: Austria and Hungary Latest case which will be presented during the AC meeting on June 2016 Concerns the replacement of posted workers Replacement by same or different employers Date from which to withdraw PD A1s

103 Concluding remarks

104 Concluding remarks The EU Regulations have served their purpose for almost 60 years Are the rules still adapted to today s economic realities? Is today s society the same as that of 60 years ago? Do all MS apply the rules as stringent as others? Do the rules give opportunity for employers to circumvent them?

105 Malcolm Scicluna

106 Entitlement to social benefits for migrant workers and jobseekers current situation and possible developments Manfred Pöltl, Dublin, 26 May 2016

107 Introduction (1) Regulations (EC) No 883/2004 and 987/2009 Coordination of social security systems no harmonisation Freedom of movement for workers, freedom to provide services, citizenship of the Union Sickness, maternity/paternity, invalidity, old-age, survivors, accidents at work/industrial diseases, unemployment, preretirement, family benefits

108 Introduction (2) Time for changes? Scepticism vs EU Unbalanced migration flows between Member States and different economic levels (East/West, North/South). Fraud and abuse, social tourism, normal migration. Fair burden-sharing between MS; Fundamental rights must be safeguarded Reduction of costs and/or migration? Immediate entitlement to social benefits? Waiting periods? No entitlement? Political and emotional issue; globalisation; Brexit

109 Current situation and possible amendments 1) Unemployment benefits 2) Family benefits 3) Special non-contributory benefits (SNCBs) 4) Old age and invalidity 5) Sickness

110 1) Unemployment benefits 1-day-rule (Article 62 (2) Reg 883) Calculation: salary of last MS of employment (exception frontier workers) Export of benefit (Article 64) Special rulre for frontier workers (Article 65)

111 Unemployment benefits - possible changes Discussions in Administrative Commission Think Tank report 2015 (not published yet). Mobility package. Threshold of one/three months? Consequences and possible amendments

112 Example Worker has been working in MS A for 5 years; moves his residence to MS B and takes up a job there; is being dismissed after 1 week; MS B is competent, aggregation of insurance periods. Proposal: MS B is competent after only one/three months of insurance. Which MS is competent? MS A!? Currently focus on interests of migrant workers for having the most favourite conditions of finding new employment; financial concerns of institutions less important. Focus would shift significantly. How can the unemployed seek work in MS A?

113 Threshold possible consequences Other amendments necessary safeguard rights of unemployed persons Other MS competent; Article 64 (export) New mechanism for reimbursement? Frontier workers vs other workers Discrimination of frontier workers?

114 Example Both Mr Smith and Mr Brown reside and work in the UK. They both move their residence to Ireland. Mr Smith continues working in the UK; Mr Brwon takes up a job in Ireland. After two months both of them are dismissed. If 3 months apply: Mr Brown is not entitled to benefits in IE; UK is competent. Mr Smith is a frontier woker and entitled to benefits in IE. Mr Brown has paid contributions in IE for 2 months, Mr Smith no contribution at all.

115 Calculation of uneployment benefits Currently: Only salaries in last MS of employment taken into account (except frontier workers) Proposal: if less than one/three months of insurance: salaries of previous MS Pros and Cons

116 2) Family benefits Export of benefit 2 MS can be competent (or even 3?) Article 68: priority rules: employment/pension/residence Residence of children Differential supplement

117 Example Family resides in MS A, mother is not gainfully employed, Father works as frontier worker in MS B Primary competence: MS B, pays its benefits in full amount MS A could pay differential supplement, if benefits in MS A are higher

118 Various types of family benefits Traditional family allowances child raising benefits, tax benefits, aid for child care at home, advances of maintenance payments, childbirth and adoption allowances Same coordination for all benefits? Calculation of differential supplement (baskets ECJ: C-347/12, Wiering, per child/per family)

119 Example differential supplement for all benefits MS A: family allowance 50, child raising benefit 100 MS B: family allowance 100, child raising benefit: 50 MS A: primary competence, MS B secondary competence All benefits togehter: MS A 150, MS B 150, no differential supplement, total: 150 By benefit category: Family allowance: MS A 50, MS B pays 50 supplement = 100 Child raising benefit: MS A 100 MS B: 0 supplement = 100, total 200

120 Family members Family members (biological father, step-father, new partnerships ) ECJ: C -363/08, Slanina, entitlement of divorced father Entitlement of the child?

121 Indexation of family benefits? Political focus in some MS Think Tank report 2015 (not published yet); Mobility package Indexation (Brexit) Models for indexation. Pull effect? Only for tax-financed benefits!? Indexation for other benefits?

122 Indexation of family benefits Proposal: adjustment to costs of living in MS of residence of the children Sub options: full upwards and downwards adjustment; only downwards Reversing order of priority Only MS of residence of children competent for family benefits?

123 Models for indexation gross domestic product per capita average income price of living costs Not for benefits that replace income Political decision: What is fair?

124 3) Special non-contributory benefits (SNCBs) Hybrid benefits: elements of social security and social assistance Implemented by Regulation 1247/92 Political compromise Non exportable; provided by MS of residence Example: Austrian compensatory supplement to low pensions.

125 Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the EU Right of residence depends on duration and status Workers and self-employed persons Inactive persons: Up to 3 months 3 months until 5 years more than 5 years Job-seekers

126 Inactive persons (1) ECJ: C -140/12 Brey German pensioner in Austria Compensatory supplement = social assistance Unreasonable burden-test

127 Inactive persons (2) ECJ C-333/13, Mrs Dano Romanian citizen in Germany, not seeking work, applied for Hartz IV Moved to Germany only to receive benefits Unreasonable burden test not mentioned

128 Former workers ECJ C-67/14, Alimanovic Swedish family in Germany, applied for Hartz IV Worked less than a year status of worker retained for 6 months (Article 7(3)(c)) Article 14(4)(b): job-seekers have right to reside No entitlement to social assistance (Article 24(2)) No unreasonable burden test!!!

129 Inactive first three months ECJ C- 299/14, Garcia Nieto Spanish family in Germany, applied for Hartz IV No entitlement to social assistance (Article 24(2)) No unreasonable burden test

130 Open questions Interplay Regulation 883/2004 and Directive 2004/38/EC unclear Equal treatment principle Further judgements? Concept of genuine link How to amend legal framework?

131 Job-seekers- benefits to facilitate access to employment in the labour market Situation still unclear Right to reside but no entitlement to SNCBs But ECJ C-138/02, Collins; genuine link ECJ C-22/08, Vatsouras Benefits to faciliate access to the labour market

132 Workers (retaining that status) Comprehensive and absolute equal treatment Social assistance for workers with low income Brexit: In work benefits?

133 4) Old age and invalidity Aggregation of insurance periods Autonomous entitlement and pro-rata-benefit Comparative calculation Partial pensions from various MS No major changes planned

134 Bringing people back to work Activation measures and Regulation 883/2004 Coordination problems if character of a benefit is changed Expample: Austrian Rehabilitation Money

135 Rehabilitation money Temporary Invalidity pensions abolished Instead: new sickness benefit but of hybrid character Rehabilitation measures and case management How to qualify under Regulation 883? Legal position of persons can be changed. Could be sickness, invalidity, unemployment,...

136 Sickness Employment related and residence-based schemes own and derived entitlement Residence in another MS (Article 17); S1 Stay in another MS (Article 18); EHIC Travel with the purpose of receiving benefits (Article 20); S2 Reimbursement via liaison bodies Long-term-care benefits

137 Sickness No major changes planned Article 32 Protection periods ECJ C-257/10, Bergström; 1+x Calculation: Wages from other MS?

138 Brexit alert and safeguard mechanism inflow of workers from other MS of an exceptional magnitude over an extended period of time, in-work benefits, serious and liable difficulties for employment market; excessive pressure on public services, restrict access to non-contributory in-work benefits, Up to 4 years, workers newly arriving during a period of 7 years

139 Thank your for your attention! Tel:

140 Irish Human Rights and Equality Commission IHREC Experience of Directive 2014/54/EU FRESSCO Seminar Dublin 26 May 2016 Gwendolen Morgan, Senior Legal Officer

141 Creation of IHREC Ireland s national human rights institution and equality body - established on 1 November 2014, by the Irish Human Rights and Equality Commission Act, An independent statutory agency, answerable directly to parliament Combined human rights and equality mandate. Section 10(1) sets out core functions: a) to protect and promote human rights and equality, b) to encourage the development of a culture of respect for human rights, equality, and intercultural understanding in the State, c) to promote understanding and awareness of the importance of human rights and equality in the State, d) to encourage good practice in intercultural relations, to promote tolerance and acceptance of diversity in the State and respect for the freedom and dignity of each person, and e) to work towards the elimination of human rights abuses, discrimination and prohibited conduct.

142 Designation of IHREC Section 10(2)(i) provides: Amongst its functions, the Commission is: To be the body designated for the purposes of Directive 2014/54/EU of the European Parliament and of the Council of 16 April 2014 on measures facilitating the exercise of rights conferred on workers in the context of freedom of movement of workers.

143 The Directive Article 3(1)- judicial procedures to be provided by Member State for the enforcement of obligations under Article 45 TFEU and Regulation 492/2011to be available to EU workers and family members who have experiences unjustified restrictions and obstacles to their right to free movement or in respect of a failure to apply the principle of equal treatment Principles of Equivalence and effectiveness apply Ireland has Workplace Relations Commission, statutory housing and benefits appeals, JR and constitutional challenges amongst other remedies

144 Key Rights under the Directive Directive not intended to create new rights see Article 2 on Scope Arts 1-10 of Regulation 492/2011 include rights not to be discriminated on grounds of nationality re- access to employment, working conditions, social and tax advantages, access to training, membership of trade unions, access to housing, access to education and training for children etc

145 The Directive Article 4-Directive 2014/54/EU requires the designated body to: Promote; Analyse; Monitor; Support; the equal treatment of Union workers and members of their family on grounds of nationality (EURES, Trade Unions, NGOs, DSP all have role to play see Recitals 21 and 22 )

146 Legal & other assistance Article 4(2) - The designated body must also have the competence to provide legal and/or other assistance to EU workers and their families in vindicating their rights. 2 main questions: 1. Does IHREC Act adequately transpose the Directive? 2. Does IHREC have the relevant competence in relation to the provision of legal/ other assistance?

147 Legal & Other Assistance IHREC Act sections 10(2)(f) and 40 sets out strict criteria for providing legal assistance IHREC s competence extends to providing information on human rights and equality rights to the public, and also providing legal and other assistance to individuals seeking to vindicate their rightscompetence broadly in compliance with the Directive.

148 Legal Assistance In relation to legal assistance human rights defined under s.29 includes: (b) the rights, liberties or freedoms conferred on, or guaranteed to, persons by any agreement, treaty or convention to which the State is a party and which has been given force of law in the State or by a provision of any such agreement, treaty or convention which has been given such force [includes EU free movement rights]

149 Legal & Other assistance Definition of human rights is sufficiently wide to include Art 45 TFEU and therefore Arts 1-10 of Regulation 492/2011 rights; Directive has direct effect, and therefore IHREC has competence even if legislation did not already include this competency. Charter when applying EU law, within scope Article 41/47 effective remedies and access to justice dimension (Recital 29)

150 Challenges & Opportunities Irish Equality law already encompasses nationality based discrimination within the Race ground and therefore does the Directive go further? Restrictions or obstacles to the rights of EU workers and their families in exercise of EU treaty rights, (which rights are not conferred on non-eu workers), broadens competency to provide legal assistance beyond prohibition of discrimination based on nationality.

151 Opportunity E.g IHREC presently dealing with case of a Polish national in Ireland who experienced numerous breaches of her employment law rights, including the right to equal treatment on the ground of her nationality. In the absence of being designated under Directive 2014/54/EU, IHREC could only provide advice and representation in relation to alleged breach of Employment Equality Acts on ground of nationality, but..

152 Opportunity on the basis that the person is exercising her EU treaty rights to live and work in Ireland, and she has experienced an unjustified obstacle to the exercise of those rights, IHREC may now also provide her with legal assistance in relation to the breaches of her other employment rights in Ireland, together with her discrimination claim. Eg unpaid wages claims

153 Challenge or Opportunity? IHREC now has broader competence in dealing with breaches of employment rights of EU workers, than it does in relation to employment rights of Irish or non EU workers. E.g a worker from Thailand working in Ireland who suffers a breach of their employment rights which does not come within the Employment Equality Acts, will not come within the competence of IHREC.

154 Legal Assistance powers Section 10(2)(e), 40,41, Part 3 compliance and enforcement powers amongst others available to vindicate rights under Directive Eg. IHREC joined as amicus curiae in linked Court of Appeal cases due to be heard in June 2016 on whether non-irish citizens enjoy same constitutional protection as Irish citizens - Luximon and Balchand v. Minister for Justice and Equality (Refs. 2015/316 and 2016/147)

155 Art 4 duty to monitor & analyse IHREC currently using its powers under section 18 of the 2014 Act to establish a Research Advisory Committee. Our work plan includes research on interculturalism and integration, which will seek, firstly, to gain an understanding of interculturalism in Ireland, and, secondly, to improve data collection on interculturalism. A call for proposals under an IHREC Human Rights and Equality Grant Scheme 2016 will be issued shortly.

156 IHREC Research Grant Scheme The grant scheme has been developed in accordance with the Commission s powers under sections 10(2)(j), (k) and (l) IHREC Act 2014 to provide financial assistance to other bodies to carry out certain activities to promote human rights and equality. Types of activities eligible for support are: Research and educational activities; Education and training on human rights and equality issues; Programmes of activities and projects for the promotion of integration of migrants and other minorities, equality (including gender equality) and respect for diversity and cultural difference.

157 Policy and Legislative Review General workplan includes policy review, leg. observations, international reporting etc Specific to Directive, Policy and Review Team has made recommendations in IHREC s international reporting on issues of migrant workers rights and social security. In IHREC s Report to the UN Committee on Economic, Social and Cultural Rights in May 2015, we raised issues on: The right to work and favourable conditions to work - specifically addressing fair conditions of work, barriers to the right to work for specific groups, including migrant workers, (and forced labour and trafficking)

158 International Reporting The right to social security - specifically addressing the Habitual Residence Condition ( HRC ) and the impact of the right to reside requirement on vulnerable groups, the adequacy of social security for groups experiencing multiple discrimination, access to social security and social welfare appeals ICESCR p.63 IHREC s report under the Universal Periodic Review in Sept 2015 recommended that the State should review its right to reside clause of the HRC and that adequate training should be provided to decision makers to prevent indirect discrimination in its application.

159 International Reporting IHREC s report to the UN s Convention on the Rights of Children in Nov 2015 also recommended that the State review the right to reside and the HRC clauses to ensure that they are not indirectly discriminatory, particularly in relation to children from migrant and Traveller backgrounds as well as asylum-seeking children. (p.25) See also CEDAW 2016 list of issues for 2017 review all available on

160 Policy work on race hate crime UPR submission, Sept 2015, IHREC recommended that the Prohibition on Incitement to Hatred Act 1989 be reviewed. The National Report published by the Government just before the UPR, committed to a review of the legislation. ICESCR Report (see pp on National Mechanisms to Combat Racism and Discrimination against Ethnic Minorities.)

161 Public Engagement s.30 Information function 2000 inquiries in 2015 S.10(2)(h) IHREC to consult with such national, EU or international bodies or agencies having a knowledge or expertise in the field of human rights or equality Regular meetings with Equinet, FRA etc S42 (1) A public body shall, in the performance of its functions, have regard to the need to (a)eliminate discrimination, (b)promote equality of opportunity and treatment of its staff and the persons to whom it provides services, and (c) protect the human rights of its members, staff and the (d) persons to whom it provides services.

162 Resources FRESSCO forum - Id=1098 And pre-fressco Ireland reports to 2013 at: -2/national-reports-fmw/national-reports-1/ Ireland s report on transposition -

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