What constitutes unreasonable burden for the social assistance system? Relation between the residence directive and social security coordination regulations in the light of the CJEU case law Prof. dr. Grega Strban FreSsco Finnish-Estonian Seminar on Key challenges for free movement and social security coordination in the EU - Cooperation between Estonia and Finland, Helsinki, 26.9.2014
The right to move and reside freely High on the political agenda Articles 18, 20 and 21 TFEU Within the territory of the MS But subject to limitations and conditions (in primary and secondary law) Articles 45 48 TFEU employed and self-employed migrant workers
Directive 2004/38 Residence directive or Citizenship Directive Distinction between three periods Up to 3 months (Articles 6, 14, 24) without any conditions but not to become unreasonable burden for SA system derogation from equal treatment discretion of MS
Between 3 months and 5 years (Articles 7, 14, 24) Economically active persons - no conditions Non-active persons only if they have - sufficient resources not to become a burden on the social assistance system of the host MS (self-sufficiency test) - (Recital 10 unreasonable burden) - comprehensive sickness insurance cover
More than 5 years (Article 16, 24) The right of permanent residence (integration in the society) No conditions of self-sufficiency or insurance cover, no expulsion
Regulation 883/2004 Distinction between (Traditional) social security benefits Social Assistance Special non-contributory cash benefits (SNCB) Article 70 Annex X (entries also by FI and EE)
Relation between Directive and Regulation CJEU case Brey C-140/12, 19 September 2013 Factual background First impression question only on the definition of SA But also on the relation between the Dir. and the Reg. - Can Directive restrict the rights under Regulation? - Can claiming the right under Regulation influence the right to reside under Directive?
CJEU case Brey C-140/12 (continued) Opinion of the AG The Court - AT complementary supplement is SNCB (confirmed findings from case Skalka C-160/02) - At the same time social assistance under the Directive
Some open questions Compromise on SNCB (1992)? - Development and purpose of special regulation - The court refers to waiving of residence clauses? - Supplementary requirement (of not becoming unreasonable burden) for the entitlement to a SNCB? - What about the first 3 months?
Some open questions (continued) Definition of social assistance? - In previous case law SNCB (Vatsouras and Koupatantze C-22/08 and C-23/08) is not SA - In Brey SNCB is social assistance
Some open questions (continued) What is unreasonable burden (double test)? - Personal circumstances (individual burden) - Overall assessment of the burden on the SA system - Both at the same time (or is there a limit and above it individual assessment is not required)? - Where is the limit (April 2014 there were 1.141 recipients of compensatory benefit in AT, 0.5 % of all)? - Not assessment of the past, but influence ad futurum? - Not only economic but also administrative burden?
Some open questions (continued) The role of the residence registration certificate? - Does it not confirm the right to reside? - Interplay between migration authorities and social security institutions?
Responses to Brey judgement in some MS Decision of the AT Supreme Court (in Brey case, December 2013) Decision of the UK Upper tribunal case CJSA/3172/2012 (in January 2014)
Some other cases Dano, C-333/13 (19 June 2013) Alimanovic, C-67/14 (10 February 2014) -Influence of Article 4 of the Regulation (nondiscrimination with SNCB) - Influence of the Charter of fundamental rights of the EU Others
Conclusions The CJEU takes decisions in concrete cases Sometimes more FMW than SSC aspects seem to prevail Does it contribute to more legal certainty?