2011 - Experiences with ECJ-court rulings concerning export of benefits and access to benefits

Bernhard Spiegel

organising training and setting up networks on the European Coordination of Social Security Schemes

in the 27 Member States

National trESS Seminar Experiences with ECJ-court rulings

concerning export of benefits and access to benefits

Copenhagen 23.9.2011

Bernhard Spiegel

Main issues•Main focus Entitlement and Export:

•EU-Principles - Some examples•Don’t expect a systematic overview•Flashlights

•Achievements:•Newest developments –•2 AC decisions to show complexity we have achieved

•Burning political issues•Family benefits •Long-term care•Assimilation of facts•Minimum benefits – social tourism

•Anything else?–Mobility of 3rd country nationals–Association Agreements

Bernhard Spiegel

Preliminary remarks•Role as a visiting trainer:

•Other perspective than pure national•Austrian experiences but also trESS perspective•Special wishes and situation in the guest country•Hope you do not mind some open remarks

•Denmark:•First lesson I had to learn “Denmark is different” – tax financed residence based social security scheme•Is this still valid?

•Different attitude towards EU ?•Austria: Questions and problems: Let’s look for a European solution!

•Many notes,•Many preliminary rulings before the ECJ•All non exportable benefits checekd by the ECJ (C-215/99, Jauch, C-160/02, Skalka and C-286/03, Hosse)

•Denmark?•Cases before the ECJ? On Reg. 1408/71?•Statistics of the ECJ (all preliminary rulings cases):

• DK: 125 AT: 348

•Why?

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Starter: Pensions - Decision No. H6 - Aggregation

• Starting point:– SED P5000– Problem Commission – Germany

• Periods for entitlement/calculation/both?• Is now everything clear?– First Art. 6 (aggregation all periods), second Art. 5

(Assimilation) – – How far goes Art. 5 (e.g. periods of residence in AT?)– Aggregation of periods of residence or assimilation of

residence abroad? (case C-503/09, Stewart)– Still a mystery: what means „to the extend

necessary“?

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Decision No. S8 substantial benefits in kind [not yet published]

• Starting point:– Art. 33 Reg. 883/2004– Continuation of entitlement to benefits when competence

changes in between– List to be established by the AC

• Is now everything clear?– Prostheses, major appliances and other substantial

benefits in kind … defined as such in the MS concerned; +– Indicative list … contact lenses, wheelchairs … tailored to

specific personal needs (?)– How does this work in practice?

• Come back to the MS?• Refund the treatment in new competent MS?

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Family benefits – cases against Austria

• Starting point– In Austria and nearly all other MS: residence based scheme– It is not an Austrian monopoly to have problems with family benefits!– Legislator has not solved the main questions.

• Many cases – export and entitlement– Child-raising benefits are family benefits (DE C-245/94, Hoever and

Zachow)– Also suspended employment relationship is exercise of employment

(AT C-543/03, Dodl and Oberhollenzer) and situation of whole family relevant (no individualisation)- is this a good solution?

– Who is an employed person exercising an employment (AT C-516/09, Borger)?

– Advances to maintenance grants are family benefits (AT C-85/99, Offermanns, C-255/99, Humer)

– How do we apply the AT C-363/08, Slanina case?

Bernhard Spiegel

Family benefits – unsolved questions

• Status quo– In Council long discussion– No solutions – Austria guilty?– Good example: ECJ has to fill the gaps.

• Main issues: Differential supplement?– Per child or per family?– One basket or for each category of benefits (family allowances and

„child raising/education“ benefits)?– Which period: per year/whole possible period (benefits which could

be modulated as to the duration by the recipients)?– New priority rules? How do we apply the C-363/08, Slanina case?

• Priority of divorced father over new parent?• More than 3 simultaneous openers of entitlements per child?

Bernhard Spiegel

Long-term care – a case study

• Start: DE C-160/96, Molenaar – Plan: benefit in kind – ECJ: cash benefits contributory, linked to health care – sickness cash benefit

• AT C-215/99, Jauch – Plan: special non-contributory benefit (Annex IIa) – ECJ: sickness cash benefit, not special, not non-contributory

• AT C-286/03, Hosse – Plan: regional special non-contributory benefit (Annex II/III) – residual scheme – ECJ: sickness cash benefit

• Many other benefits included – are there still any benefits outside?

Bernhard Spiegel

Long-term care – status quo

• ECJ not to blame• Coordination as sickness benefits

– Benefits in kind by local institutions with reimbursement– Benefits in cash exported by the competent MS

• Problems with:– Export from residence based schemes– Benefits tailored for local needs– Benefits which go hand in hand with the provision of local social

services– Art. 34 of Regulation 883/2004 to prevent overlapping

Bernhard Spiegel

ECJ C-388/09, da Silva Martins[Decision of 30.6.2011]

• Case: receipt of German and Portuguese pension; residence PT

• Subject to PT health care system, does not provide for LTC benefits (?)

• Is it possible to continue voluntary LTC-insurance in DE? Has DE to export LTC cash benefit?

• ECJ: Yes! Even if PT knows LTC benefit in cash – differential payment by DE

• Remaining questions: only for contributory benefits? • Art. 34 Reg. 883/2004 does not work in such a case

– Overcompensation!• Combined with C-352/06, Bosmann, always the best of

both worlds?

Bernhard Spiegel

Long-term care[Work in progress]

• trESS Think Tank Study – will be available in winter 2011• Purpose:

– Mapping of existing schemes– Describing the challenges– Proposing solutions

• Still many problems and misunderstandings• What is social assistance excluded from Reg. 883/2004?

– National systematic not relevant!– Also local municipalities can run social security schemes– What is „entitlement“?

• Coordination under different chapters of Reg. 883/2004• Still many cases of overcompensation or exclusion from

entitlements when sickness chapter is applied

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Assimilation of facts – Child raising periods

• NEW: Art. 5 of Reg. 883/2004 – what cases concerned in DK?

• Periods of residence?• Child raising periods under AT legislation only for child

raising in AT– ECJ C-28/00, Kauer, discriminatory – if close relation of period

abroad with AT –– Which are the limits? – Principle: Recital 10 – periods only via aggregation– BUT: Art. 44 of Reg. 987/2009 extension– BUT: EC goes beyond that in C-522/10, Reichel-Albert

• No competence of DE at the moment the periods abroad could be taken into account

Bernhard Spiegel

Minimum benefits – social tourism?

Political dimension• AT example recipients of small pension from other

MS (BG und RO) come to AT:– Never before relation to AT – no AT pension

• But also: parents want to move to their children active in AT– Claim AT minimum pension (~ € 800 a month, top up only

to AT pensions) – Art. 5 of Reg. 883/2004– Thus achieve also a residence right in AT

• Social tourism (what is the position of the TFEU?)• Complaints, attacks against the government– All other MS are not so stupid

AT minimum pension for EEA pensioners

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AT minimum pension for EEA pensioners

Bernhard Spiegel

Bernhard Spiegel

Minimum benefits – legal dimension

• All these benefits are residence based• Reg. 883/2004: entitlement due to assimilation of

facts – from what moment on?• Dir. 2004/38/EG: right to reside for the 5 years in

case of inactive persons only, if they have – Comprehensive health care coverage– Sufficient resources so that they do not become a burden

on the local social assistance scheme– Special rules for workers/unemployed/family members

• What comes first?– Social security experts/immigration law experts

Bernhard Spiegel

Minimum benefits – open issues

• Is “social assistance” under European Law always the same?– Not under Reg. 883/2004 but under Dir. 2004/38?

• Is it possible to provide for further conditions for entitlement to benefits? – 5 years residence for student grant (ECJ C-158/07, Förster)– Ordinary residence for job seekers grant (ECJ C-138/02, Collins)

• What is the effect of Art. 5 Reg. 883/2004 (Assimilation of facts)?– Immediately or only after close relationship to MS? Is it necessary that

national legislation provides for it or only interpretation?• If “social assistance” for Dir. 2004/38 only removal from the

territory or denial of benefit if residence “tolerated” (ECJ C-456/02, Trojani)?

• Different opinions of MS/EC/academic world (trESS Think Tank report 2008

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Minimum benefits – status quo• Reactions in Austria:

• Enforced control mechanism to check “residence” in AT• Minimum pension only in case of “legal” residence in AT• Top up to minimum pension means social assistance under

the AT residence law• Reactions in the EU:

• Initiative of 13 ministers for social affairs during meeting of Council (17.6.2011)

• Demanding: immediate start of work on changes of legal framework

• Infraction procedure (UK – habitual residence e.g. for income support or state pension credit)

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Association Agreements• Council has decided on Decisions

• Algeria, Marocco, Tunesia, Israel, FYROM und Croatia• Many effects?• Equal treatment – already many obligations under ECHR

(case Gaygusuz)• Same coordination as under Reg. 1231/2010• What applies to DK? Legal base Art. 79 TFEU)

• Problem Turkey– ECJ C-485/07, Akdas• Export non-contributory benefits listed in Annex IIa of Reg.

1408/71• Perfect example how problems are made in Europe:

• Legislation is not clear• Rapid development of the legislation• European legislator does not react

Bernhard Spiegel

Mobility of 3rd country citizensMany different legal acts (no problem for DK?)• Dir. 2003/109/EG status of 3rd country nationals who are

long-term residents (equal treatment after 5 years of legal residence)

• Dir. 2005/71/EG admitting 3rd country nationals for the purposes of scientific research (equal treatment – family benefits for AT + DE excluded?)

• Dir. 2009/50/EG 3rd country nationals for the purposes of highly qualified employment („blue card“) (equal treatment – family benefits for At + DE excluded?)

• („single permit“)• Saisoniers• Intercorporate Transferees• …. etc.• Problem always equal treatment + export of pensions

– National autonomy?, does community law contain already obligations?, ECHR etc.

Bernhard Spiegel

Short summary• AT has many experiences with the ECJ• More clarity but more questions than answers• It is getting more complex• Danger: MS apply EU-rules differently• Questions of coordination of social security

are becoming more and more political• There is still a lot to do!

Thank you for your attention!