The judicial finetuning of the EU rules determining the applicable social security legislation

Anne Pieter Van Der Mei,Eva Van Ooij

doi:10.1177/1023263x211058394

Anne Pieter Van Der Mei, Eva Van Ooij

Open Access

https://doi.org/10.1177/1023263x211058394

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Abstract

The conflict rules enshrined in Regulation 883/2004 on the coordination of social security were created six decades ago to offer those who exercise free movement rights ‘constant social security protection’. The main idea was to ensure that beneficiaries are always subject to the legislation of a single Member State and to indicate which Member State that was. Because beneficiaries were above all ‘standard’ employees working on a full-time basis for an indefinite period of time, it was initially quite easy to determine the ‘competent’ Member State. The processes of flexibilization, digitalization, enlargement and globalization, however, have posed new and often formidable challenges. In today’s dynamic labour market it is often particularly difficult to identify the applicable legislation, issues arise as regards swift and frequent switches in the applicable legislation, increased worker and company mobility may affect social security rights and problems have arisen because of the possible fraudulent use of the rules determining the applicable legislation. This contribution analyses some of the recent CJEU case law on topics like working in to or more Member States, posting, abuse and fraud, employment and/or residence outside the EU and gaps in in social security protection by EU workers. The overarching question is how, in the view of the CJEU, the classic conflict rules are to be applied so as to ensure cross-border movers continue to enjoy constant social security protection.

Highlights

To facilitate the cross-border movement of persons within the European Union (EU) the EU legislature has set in place an extensive regime for the coordination of social security systems
The goal is to ensure that a person who moves between Member States is, at any point in time and in whatever circumstances s/he may find her/himself in, subject to the social security legislation of a single Member State (‘single State rule’).[3]
The Court of Justice of the European Union (CJEU) found, that a temporary-work agency can only benefit from Article 12 if, in the Member State in which it is established, it carries out the activities of assigning temporary workers.[32]

Summary

Introduction

To facilitate the cross-border movement of persons within the European Union (EU) the EU legislature has set in place an extensive regime for the coordination of social security systems. To the questions that relate to identifying the competent State in a given situation, issues arise as regards swift and frequent switches in the applicable legislation, the social implications of both worker and company mobility and the possible fraudulent use of the rules determining the applicable legislation Such questions are to be addressed by the EU legislative institutions, but chances that the conflict rules will be significantly altered in the near future would seem to be quite small.[5] As a result, questions on how to interpret and apply the rules, and how to demarcate Articles 11, 12 and 13 of Regulation 883/2004, must often be answered by courts and the Court of Justice of the European Union (CJEU) in particular. The overarching question is how, in the view of the CJEU, the classic conflict rules are to be applied to non-standard forms of work

The simultaneous pursuit of activities in two or more Member States

Posting

Article 12

Article 13

Abuse and fraud

Employment outside the Union

Residence outside the Union

Gaps in social security protection

Exclusivity and the power of a non-competent Member State to grant benefits

Gaps in social protection resulting from disparities in national legislation

Findings

Concluding remarks