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National trESS Seminar

organising training and setting up networks on the European Coordination of Social Security Schemes in the 27 Member States. National trESS Seminar Access to non-contributory benefits and the link to the residence Directives (Social tourism in Europe?) Nicosia 24.9.2012. Main issues.

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National trESS Seminar

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  1. organisingtrainingand setting up networkson the European Coordination of Social Security Schemesin the 27 Member States National trESS Seminar Access to non-contributory benefits and the link to the residence Directives (Social tourism in Europe?) Nicosia 24.9.2012 Bernhard Spiegel

  2. Main issues History: Special non-contributory benefits in cash Special coordination Residence Directives Minimum benefits – open issues: Social tourism possible? Legal questions and problems Political dimension Way forward Different possibilities Bernhard Spiegel

  3. 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 Cyprus: Terra incognita? No ECJ cases up until now Problems – if any, applicable legislation 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 checked by the ECJ Many other Member States; only national decisions; no preliminary rulings Bernhard Spiegel

  4. History – problems with mixed-type benefits • Starting point: • Benefits are covered by Reg. 1408/71 [883/2004] • If legal entitlement • If related to one of the risks enumerated in the material scope • Social assistance excluded • ECJ included social assistance benefits • Under national systematic, social policy, financing mechanism etc. • E.g. Italian social pension (C-139/82, Pscitello) • E.g. French special allowance for the elderly (C-157/84, Frascogna) • Equal treatment and export Bernhard Spiegel

  5. History – solutions found • Reg. 1247/92 Special coordination • Special non-contributory benefits in cash • Possibility to list in Annex IIa Reg. 1408/71 [Annex X Reg. 883/2004], then • No export • But, equal treatment and assimilation of facts - e.g. Art. 10a Reg. 1408/71 [Art. 5 Reg. 883/2004] • If not listed: Export! • Nearly all MS have listed their benefits • Cyprus: • Social pension • Sever motor disability allowance • Special grant for blind persons Bernhard Spiegel

  6. History – new problems • ECJ starts examination • What is special? • Austria all benefits checked • C-160/02, Skalka, compensatory supplement – Yes! • Minimum pension; Top-up of Austrian pensions below 784 € • C-215/99, Jauch, Federal long-term case allowance – No! • C-286/03, Hosse, Provincial long-term care allownace – No! • New problems • All (?) long-term care benefits are wrongly listed in the Annex • Only mobility part can stay there (C-299/05, Commission against Parliament and Council, C-537/09, Bartlett) • Free movement of workers could oblige to export in special cases (C-287/05, Hendrix) • What exactly is „non-contributory“? • C-215/99, Jauch, no „tricks“ of national legislator Bernhard Spiegel

  7. Residence Directives Directive 2004/38/EC (EU Citizens) [non actives] right to reside, when Health care coverage which covers all risks Sufficient means of subsistence not to become a financial burden for social assistance of the [new] MS of residence Additional clarifications: Claiming social assistance itself is no reason for automatic expulsion (C-456/02, Trojani); As long as a person is legally tolerated on the territory, equal treatment also with regard to social assistance (C-456/02, Trojani); MS can request special link to the MS before granting social benefits (up to 5 years e.g. for study grants – C-158/07, Förster); Minimum benefits for jobseekers cannot be regarded as social assistance for the Dir. (C-22/08 and C-23/08, Vatsouras and Koupatantze). Other Directives (e.g. 2003/109/EC for long-term resident third country nationals) – similar principles Bernhard Spiegel

  8. 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 expulsion or denial of benefit if residence “tolerated” (ECJ C-456/02, Trojani)? Different opinions of MS/EC/academic world (trESS Think Tank report 2008, trESS Analytic Study 2011) Bernhard Spiegel

  9. Room for manoeuvre? C-503/09, Stewart, concerning UK work incapacity allowance for the non-active National conditions: Residence and stay in the UK when claiming Oridinary residence in the UK Stay in UK during 26 weeks within last 52 weeks Special link can be requested: But, duration of stay not proportional as other aspects could speak for the link New case C-140/12, Breywill bring more clarity In Austria legal residence required for compensatory supplement Bernhard Spiegel

  10. Political dimension Interdependence between Reg. 883/2004 and Dir. 2004/38 has not been seen; More and more questions, national cases, uncertainties Social tourism allowed? [Brey case] Initiative of 13 Social Ministers during EPSCO-meeting (17.6.2011) trESS study 2011 on social security for moving non actives Infraction procedure (UK – habitual residence e.g. for income support or state pension credit) Questionnaires to MS Bernhard Spiegel

  11. Way forward • Action plan of the AC Secretariat: • Elaboration of guidelines, glossary • Precision on „residence“ – when is it transferred? • Measures to combat fraud and error • Collection of statistics • Ad-hoc Group of the AC • High ranking meeting started by the UK • Legislative changes: • In Reg. 883/2004? • In Dir. 2004/38? • National legislation? • Wait for new ECJ cases? Bernhard Spiegel

  12. Problems to overcome Is the whole problem well analysed in MS? How many cases are involved? Lack of statistical data It seems to be a more political than quantitative problem (e.g. in Austria 235.000 pensioners receive the compenatory supplement; only 980 drawing only a EU-pension) Limits by the TFEU National or European solutions? Bernhard Spiegel

  13. Figures from Austria – compensatory supplement

  14. Short summary • More clarity is needed - 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! Bernhard Spiegel

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