A brief reference to the ongoing review of the EU system of social security coordination

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by Sophie Perez Fernandes, Junior Editor

The right to move and reside freely within the territory of the Member States, which is granted to EU citizens and members of their families, is one of the freedoms on which the European integration process is based. Apart from fundamental economic freedom, which is embedded in the professional freedoms guaranteed by the Treaties as pillars of the internal market (free movement of workers, freedom of establishment and freedom to provide services)[i], the free movement and residence of nationals of the Member States forms part of the essential core of their status as EU citizens[ii], as well as being recognized as a fundamental right[iii].

Although so framed in EU primary law, this right to move and reside freely would not be practicable if were not protected the social security rights of those who actually exercised it by moving from one Member State to another, accompanied or not by their families. For the so-called dynamic citizens, it was necessary for EU law to provide them with adequate protection in the fields of social security with the aim of avoiding that the particularities of the national social security systems of the different Member States would hinder the exercise of their freedom of movement. The first EU regulation in this area dates back to the 1950s, and over the ensuing decades the normative and jurisprudential acquis framing the coordination of social security systems has been solidified and complexified, seeking to balance the preservation of the competences of the Member States in the fields of social security and to ensure the continuity of social protection of individuals beyond Member States.
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On the CJEU’s case-law concerning the “social tourism” that preceded the Brexit referendum – between forces of cohesion and fragmentation

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by Professor Alessandra Silveira, Editor

One week prior to the scheduled date of the referendum about the UK leaving the EU a ruling of the Court of Justice of the European Union was published. The decision was to dismiss an action for failure to fulfil an obligation (article 258, TFEU) which had been filed by the European Commission against the UK seeking the conviction of such Member State for violating the prohibition of non-discrimination on ground of nationality[i]. Throughout the year of 2008, the European Commission received several complaints by citizens from other Member States living in the UK with objections about the refusal of British authorities to provide them social benefits due to the absence of proof of the right to reside. Following that, the EC accused the UK of not fulfilling the Regulation 883/2004 (on the coordination of social security systems) because it subjected the applicants of certain social benefits – namely the dependent child allowance or the child tax credit – to the so-called test of right to reside. The Commission considered that requirement incompatible with the meaning of the mentioned Regulation – once it makes reference to a habitual residence and not a legal residence – and, simultaneously, discriminatory towards the nationals from other Member States as such requirement is automatically fulfilled by the British nationals living in the UK.

The core of the case was to evaluate if a Member State’s permission to attribute certain social benefits only to the people who legally reside in its territory is in itself discriminatory under the terms of article 4 of the Regulation 883/2004. Under the title “equality of treatment”, the article states that, unless otherwise provided for by the own Regulation, persons to whom it applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof. All in all, in every situation comprised by the ratione materiae domain of application of the EU Law, any European citizen may invoke the prohibition of discrimination on ground of nationality which shows in article 18, TFEU and it is materialised in article 4 of the Regulation 883/2004. Those situations include the ones deriving from the exercise of the freedom to move and to reside in the territory of the Member States, which are laid in articles 20 (2), 1º§, a) and 21, TFEU.

Continue reading “On the CJEU’s case-law concerning the “social tourism” that preceded the Brexit referendum – between forces of cohesion and fragmentation”