Abstract
The Norwegian ‘social security’ scandal concerns the right to export sickness benefits pursuant to EU Regulation 883/2004. Norway is party to the EEA Agreement and the Regulation is binding in Norway. Norway’s Social Security Act requires continued presence in Norway to retain payable benefits. Thousands of claims have been rejected by disregarding Regulation 883/2004 or reading it down. Some hundred citizens have been sentenced to prison for welfare fraud because they stayed in another EU/EEA State and exported cash benefits in the absence of prior authorization. Legal uncertainty seems to remain, and the exact scope of the scandal is still not clear. The paper discusses the reach and depth of the rights afforded by Regulation 883/2004 on the coordination of social security systems. It argues that the main rules on equal treatment (Articles 4 and 5) and the main rule on free movement (Article 7) provide an unconditional right to export sickness benefits in cash. It provides an account of the internal, systemic, and constitutional integrity of the Regulation, and the equilibrium between coordination and harmonization.
Highlights
Introduction and OutlineThe Norwegian social security scandal is arguably one of the biggest European law scandals to date.[1]
In a letter of 11 June 2020, the Norwegian Government argues that a requirement of presence and a system of prior authorisation for stays abroad are in conformity with European Union (EU) Regulation 883/2004 on the coordination of social security systems.[5]
As of June 2020, by referring to the legal assessment of the Expert Commission, the Government respectfully disputes that Norway has failed to fulfil its obligations under the Economic Area (EEA) Agreement by maintaining in force [the requirements of presence and prior authorisation] of the National Insurance Act [ie Social Security Act]
Summary
The Norwegian social security scandal is arguably one of the biggest European law scandals to date.[1]. In a letter of 11 June 2020, the Norwegian Government argues that a requirement of presence and a system of prior authorisation for stays abroad are in conformity with EU Regulation 883/2004 on the coordination of social security systems.[5] The Government disputes that Norway has failed to fulfil its obligations pursuant to the EEA Agreement by maintaining in force the above-mentioned restrictive national law provisions, and claims that the measures are justified, necessary and proportionate.[6] The EFTA Court is expected to deliver its ruling on the matter in the first half of 2021.7 Until the exact scope of the scandal will remain unclear, and perhaps even after. The condition of presence and the requirement of prior authorisation have been applied to those who, according to this narrow interpretation of Article 7, are outside its reach This is the reason why the scandal only concerns recipients that have stayed abroad temporarily, for instance for holidays. I show how the conclusion defines the equilibrium between national law and EU law in a manner that underpins the integrity of both
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