College aantekeningen
Lecture 6 European Labour Law and Social Security Law
This document contains all the notes I took during lecture 6 of the course 'European Labour Law and Social Security Law'. I passed this course with an 8!
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Voorbeeld 3 van de 19 pagina's
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Voorbeeld van de inhoud
Coordination of Social Security & Unemployment benefitsFree movement of workers ex. Art. 45 TFEU
The provision entitles nationals of the Member States to gain access not only to the labour
markets but also to the social security and welfare systems of other Member States and it
enables them, together with their families, to integrate in the host State’s society. Free
movement of workers now is part of the broader topic of EU law on free movement of
persons and the legal status of workers is now also partially governed by legal instruments
applicable to all Union citizens, notably including Directive 2004/38 on Union citizens’ right to
move and reside freely.
Once Union citizens have entered into an employment relationship with an employer in
another Member State, they are entitled to be treated equally in all matters related to
employment, including remuneration, dismissal, conditions of employment, vocational
training, social advantages awarded to workers, membership of trade unions and related
rights, and re-instatement of re-employment.
There is a difference between labour law and social security law. Labour law is about
harmonization mostly by directives. They impose certain norms by Member States to
guarantee to their employees. In principle, social security is organized by the Member States
themselves. They can decide whether they want to do it or not, what the conditions are or
premiums / taxes and how much. The member states decide on this. We don’t go in to the
systems as such, because it is fully to the Member States. Exception: discrimination based
on gender. There is an important branch that deals with social security. EU law coordinates
national security systems. The background is free movement of persons within the EU.
Everyone is entitled to freedom of movement. From the beginning it is recognized that when
we don’t do anything on social security law, freedom of movement of people will never be
guaranteed. If people would lose their security or pay double premiums when they move to
another member state, they are most likely to stay. The EU has set up a system that builds
between national social security systems. Social security as such remains an autonomous
thing for the Member State. EU law makes a link so that the entitlements are protected. You
are not always entitled for the same amount of money, but the conditions are laid down in
national law. To fully understand the whole system, we have to look at the free movement of
persons within the EU.
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,Social assistance is ‘bijstand’. Roughly speaking social assistance is a state establishment.
There are certain risks, like becoming unemployed or retiring. Everyone is obliged to pay
taxes, so that you are entitled for a benefit when these risks happen. SS is often linked to
workers status /employment status but it can also be linked to the country. Everybody in the
NL is mandatory ensured for health insurance and old age.
Social assistance is something different. It is a government system that is available for
everyone who doesn’t have income / not enough income. You can go to the government and
get money to cover the basic costs of living. It is a safety net, if you have nothing else. Even
if you are not ensured / never paid taxes. So it is more a gift. Old age pensions / social
security rights are rights that you build up yourself. When you retire, you are entitled for the
pension that you build up yourself. It is much more focused on the personal record. Social
solidarity is that the rich pay taxes and the poor have basic needs. Social assistance
important to keep in mind not covered by regulation … on the cordiantion of social
security.
Questions arise for freedom of movement of the poor. This answer is based on the rules of
freedom of movement. After we talk about regulation 883 (?) adopted in 2004 enter into
force in 2010. Before 2010 we had another regulation. 883 is a modern version of that old
regulation. In the course material you find the old articles and the new articles. On answer /
exam answer on the bases of 883.
Regulation 883 is not included in the blackstone. On the exam, we put in the articles the
relevant articles that you need. You cannot bring it to the exam. On the exam we will get the
relevant articles.
Your starting point is that the right to work in other Member States is granted to all Union
citizens. So third country nationals (non-EU citizens) are excluded. Those who exercise the
right are not necessarily entitled to all the rights and benefits awarded by Article 45 TFEU,
notably including the right to reside for more than three months and equal treatment as
regards social advantages.
The main rules on the freedom of movement for EU citizens are laid down in directive
2004/38. This directive 2004/38 is adopted in June 2004, right before 10 East European
Member States joined the EU. The idea was to finish the new directive of the free movement
of persons before the new MS joined. The whole process was speeded up to make sure that
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, the EU rules could be imposed to the new member states, because once they became
members, all the rules automatically applied to them.
Directive 2004/38 makes a distinction between:
- EU citizens that go to another EU MS and stay up to three months
- EU citizens who go to another MS and live there up to 5 years and;
- EU citizens who have already lived there for 5 years and have required permanent
residence. These are the EU travellers.
< 3 months: For the first category, you are entitled to be present / stay for a period of 3
months unconditionally. There is however a ‘but’, because when you look at equal treatment
article 24, it states that during this 3 months you cannot claim social assistance. You
cannot travel to another MS because you are poor and you want social assistance. The idea
behind this clause is that the differences in social assistance benefits are huge. In member
states like The Netherlands, Germany, France and Belgium the social assistance is much
higher than in East Europe / South Europe. As a consequence, citizens from Eastern Europe
/ Southern Europe will all move to the west for the sole purpose of collecting high benefits.
> 5 years: After 5 years, the situation is the opposite. When you have lived in a Member
State for over 5 years, you have acquired permanent residence. You can stay there forever
(exception: if you are a terrorist / linked to terrorism). In this case equal treatment applies.
You are treated completely the same as another national from that Member State. If you
don’t have a job after 5 years, you can join the solidarity community.
< 3 months- > 5 years
The directive makes a distinction between:
The workers (economic active) and; in this case you are entitled to live in the state
where you have been accepted. EU citizens only acquire workers status when the
activities performed are effective and genuine and not on such a small scale as to be
regarded as purely ‘marginal and ancillary.’ Part time work may suffice, but the court
has never indicated how many hours must actually be worked for. So the criteria:
o Subordination
o Salary
o Effective & genuine work
Article 7(2) of Regulation 492/2011 provides that workers ‘shall enjoy the same (…)
social advantages as nationals’ workers. Social advantages is a broad concept, so it
captures all rights or benefits which:
‘Whether or not linked to a contract of employment, are generally granted to national
worker primarily because of their objective status as workers or by virtue of the mere
fact of their residence on the national territory and whose extension to workers who
are nationals of other MS therefore seems likely to facilitate the mobility of such
workers within the community.’
So article 7(2) implies that workers are to treated as equal members of the host
State’s socio-economic society who can participate in the labour market and have
access to welfare state regimes under the same conditions as nationals of the host
State. So gives all workers a right to equal treatment in relation to social
advantages. This covers everything; all social security law, financial assistance,
financial aid etc.
However, rights of a more political nature, such as the rights to vote and to stand as a
candidate in elections as well as certain rights to the performance of military service
fall outside the scope of article 7(2).
So when I, as a Dutch citizen living in Maastricht, accept a job in Liège, I can be a
worker there and I can decide to live here. As a result, if I lose my job, I can claim
social assistance in Belgium. You don’t have to move your private residence before
you can claim social assistance. IN THE ASSIGNMENT?
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