The EU (non) co-ordination of minimum subsistence benefits: What went wrong and what ways forward?

Gijsbert Vonk

doi:10.1177/1388262720928772

Abstract

This contribution deals with the co-ordination of minimum subsistence benefits in EU law. It is argued that the distinction between social assistance schemes and non-contributory benefits in EU social security law is becoming increasingly redundant. This is recognised in the case law of the CJEU, although paradoxically not in a way that strengthens the rights of mobile citizens, but in an adverse manner that undermines the co-ordination efforts of non-contributory benefits under Regulation 883/2004. In order to overcome this problem, it is argued that social assistance should be included in the material scope of application of Regulation 883/2004. This regulation should abandon the concept of special non-contributory benefits and introduce a new category of minimum subsistence benefits, which would also include social assistance schemes. Such a change could be accompanied by a single, coherent principle to govern the relationship between the right to benefits (Regulation 883/2004) and residence rights (Directive 2004/38), if necessary supported by a cost sharing mechanism for minimum substance benefits under Regulation 883/2004 and, preferably, by a recognition of minimum protection standards for economically non-active EU citizens without a legal right of residence.

Highlights

The place of minimum subsistence benefits in EU law is shrouded in controversy
This article analyses the state of co-ordination of minimum subsistence benefits in EU law
A central characteristic of these schemes is that they are tax financed and means tested. Often, such measures are targeted towards parents with children, in particular lone parents.17. They are likely to be co-ordinated by Title III, Chapter 8 of Regulation 883/2004 as family benefits, whereas these cash transfers have much in common with general social assistance regulated by universal social assistance schemes

Summary

Introduction

This article analyses the state of co-ordination of minimum subsistence benefits in EU law. The exclusive obligation for the residence member state to provide mobile citizens with special non-contributory benefits at its own expense was part of the great bargain between the Commission and the Member States in the 1992 amendment of the Regulation 1408/71.7 Implementation Regulation 987/2009 contains interesting procedural rules in Article 11 covering the situation in which residence is contested between two states, taking into account a number of criteria, such as the duration of the stay, family ties, the intention of the person, etc. Such rules are a typical by-product of a collective coordination effort

Justification for a separate regime for special non-contributory benefits?

Justifications for a separate regime for social assistance benefits

Case law of the CJEU

Ways forward

Afterthought