European citizenship in the recent JD judgment: on the public reason of the “Union based on the rule of law”

On November 16, 2020November 16, 2020 By officialblogunioIn EssaysLeave a comment

by Alessandra Silveira (Editor) and Nataly Machado (Master's student in EU Law, UMinho)

▪

“This is a time to take part
Time of parted humans (…)
The laws are not enough
The lilies do not arise from the law”[i]
(“Our time”, Carlos Drummond de Andrade, 1902-1987)

In a poem written during the horrors of the Second World War, the Brazilian poet Carlos Drummond de Andrade depicted one of those historic moments in which people and institutions must take up a political position, to take sides[ii]. At a time when the European Union “is going through an unprecedented public health crisis, to which the Member States must answer by demonstrating equally unprecedented solidarity”[iii], in the JD case, the Court of Justice of the European Union (CJEU) was asked about the extent of the social assistance which a host Member State must provide to a former migrant worker seeking employment who is the primary carer of his two children attending school in that State.

This judgment helps us to unravel the public reason of the European Union, i.e., the criteria/standards by which we can seek the legitimacy of the exercise of power. As John Rawls explained, “[t]he idea of public reason specifies at the deepest level the basic moral and political values that are to determine a constitutional democratic government’s relation to its citizens and their relation to one another. In short, it concerns how the political relation is to be understood”[iv].

Continue reading →

Judgment “Altun”: priority to fight against cross-border social security fraud and social dumping or a just a trick mirror?

On June 25, 2018June 25, 2018 By officialblogunioIn Case notesLeave a comment

by Marc Morsa, Senior Researcher at the Faculty of Law of the University of Louvain-La-Neuve

▪

1. Social dumping and binding force of E101 certificate (A1 document)

1.1 The scope of the binding force of E101 certificate

In the fight against cross-border social fraud and social dumping the competent authorities of the host Member State in whose territory posted workers are employed often come up against the binding force attached to the E101 certificates stating that the worker concerned continued to be subject to the legislation of that Member State, and until which date. This binding force has been defined by the ECJ in a well-established jurisprudence[i]. This certificate thus necessarily implies that the other Member State’s social security system cannot apply[ii]. It establishes a presumption that the worker concerned is properly registered with the social security system of the Member State in which the undertaking employing him is established[iii][iv]

1.2 The cornerstone of the binding force of E101 certificate: the principles of loyal cooperation and mutual trust between the EU and its Member States

For the ECJ this presumption of regularity of affiliation derives from the principle of loyal cooperation, set out in Article 4 (3) TEU and its corollary, the principle of mutual trust[v]. Both principles impose on the social security institutions concerned a double reciprocal and interdependent obligation[vi]. Thus, to the negative obligation incumbent on the competent institution of the host Member State (and on all the courts and tribunals of the Member States regardless of the nature of the proceedings brought, whether civil or criminal) not to unilaterally challenge the certificate E101 – its particulars[vii] and not to question the validity of an E 101 certificate in the light of the elements on the basis of which it was issued corresponds to the positive obligation incumbent on the competent institution (issuing the E 101 certificate) to make a proper assessment of the facts relevant for the application of the rules relating to the determination of the legislation applicable to social security and, consequently, to ensure that the information contained in an E 101 certificate is accurate[viii].
Continue reading “Judgment “Altun”: priority to fight against cross-border social security fraud and social dumping or a just a trick mirror?” →

Amending social security coordination – challenges of the Regulations (EC) No. 883/2004 and No. 987/2009

On May 18, 2018May 2, 2018 By officialblogunioIn EssaysLeave a comment

 by Joel Lacerda Azevedo, master in EU Law at University of Minho

▪

Ensuring the right to social security when exercising the right of free movement has been a major concern of the Member States in the EU. In order to achieve this, it was necessary to adopt social security measures which prevent Union citizens who work or reside in a Member State other than their own from losing all or part of their social security rights, thereby contributing to the improvement of their quality of life.

The EU provisions on social security coordination do not replace national social security systems with a single European system, such harmonization would not be possible since the social security systems of a Member State are the result of long-standing traditions deeply rooted in the culture and national preferences[i]. Consequently, instead of harmonizing social security systems, EU provisions provide for their coordination. Each Member State is free to decide who is a beneficiary under its legislation, what benefits are granted and on what conditions, how those benefits are calculated and what contributions are to be paid[ii].

In order to grant EU citizens the social and health benefits to which they are entitled, coordination between the social security systems of the Member States is necessary. However, the current Regulations (EC) Nº 883/2004[iii] and (EC) Nº 987/2009[iv] no longer reflect the changing national social security systems and the case law of the European Court of Justice.
Continue reading “Amending social security coordination – challenges of the Regulations (EC) No. 883/2004 and No. 987/2009” →

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

On September 11, 2017September 11, 2017 By officialblogunioIn CommentsLeave a comment

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.
Continue reading “A brief reference to the ongoing review of the EU system of social security coordination” →

A realpolitik, inside view of the Social Security negotiations in the EU on “Brexit”

On May 4, 2016May 6, 2016 By officialblogunioIn CommentsLeave a comment

by Elisabete Silveira, Director of Negotiation and Coordination of International Instruments Unit of Directorate-General of Social Security in Portugal

▪

After long and difficult discussions, the Heads of State or Government, meeting within the European Council of 18-19 February 2016, adopted a Decision concerning a New Settlement for the United Kingdom within the European Union.

It will become effective on the date the United Kingdom informs the Council about its decision to remain a member of the EU and will require secondary legislation which the Commission will only propose after a successful referendum. Should the result of the referendum in the UK be for it to leave the EU, the set of arrangements agreed by the European Council will cease to exist.

The Decision covers four sections: Economic Governance, Competitiveness, Sovereignty and Social Benefits and Free Movement.

Focusing only on the last section, it should be noted that, following the taking effect of the Decision, the Commission will submit proposals for amending two important Regulations: Regulation (EC) N.º 883/2004 on coordination of social security schemes and Regulation (EU) N.º 492/2011 on freedom of movement for workers within the EU.

The amendment of Regulation (EC) N.º 883/2004 is intended to give Member States, as regards the “exportation of child benefits to a Member State other than that where the worker resides, an option to index such benefits to the conditions of the Member State where the child resides. This should apply only to new claims made by EU workers in the host Member State. However, as from 1 January 2020, all Member States may extend indexation to existing claims to child benefits already exported by EU workers. The Commission does not intend to propose that the future system of optional indexation of child benefits be extended to other types of exportable benefits, such as old-age pensions.”

These arrangements raise many doubts and perplexities.

Continue reading “A realpolitik, inside view of the Social Security negotiations in the EU on “Brexit”” →