1. Social Europe Recent developments in EU social security coordination trESS seminar, Dublin, Ireland 2 October 2013 Magdalena Ciesielska and Albrecht Otting DG Employment, Social Affairs and Inclusion

2. Social Europe EU Social Security Coordination in the wider context Challenge of financial and economic crisis for free movement Changed attitude in some Member States Free movement and social security coordination in the centre of the political debate

3. Social Europe I. Recent Policy Developments 1. Regulation 465/2012 2. First Revision of Regulation 883/2004 3. Staff Working Paper on Highly Mobile Workers 4. Patients Mobility 5. Residence issues 6. External Dimension 7. Electronic Information Exchange (EESSI)

4. Social Europe Regulation 465/2012 New Article 65a BR Solution for formerly self-employed frontier workers who were covered in the Member State of last activity, but whose MS of residence does not have an unemployment benefits scheme MS of last activity will pay the unemployment benefits if the person registers with the employment services in that Member State and is available for work there; If the person does not wish to become or remain available to the employment services of the MS of last activity and wishes to seek work in the MS of residence, the MS of last activity will pay the unemployment benefits for minimum 3 months, with a possibility of extension until end of entitlement.

5. Social Europe Regulation 465/2012 Change of rules for working in two or more MS Article 13 BR as amended: Person normally working in two or more MS is subject to legislation of MS of residence only if he/she pursues "substantial part of activities" there (regardless if person has one or more employers) If no substantial activities in MS of residence: MS in which registered office is situated if person is employed by one employer or by two or more employers who have registered office in a single MS only; or MS in which registered office is situated outside MS of residence if he/she is employed by two or more employers which have registered office in two MS, one of them is MS of residence; or MS of residence if he/she is employed by two or more employers and at least two of them have registered office in different MS other than MS of residence

6. Social Europe Regulation 465/2012 Aircrew members - New Art 11 (5) BR "An activity as an aircrew member performing air passenger or freight services shall be deemed as an activity pursued in the Member State where the home base as defined in Annex III to Council Regulation (EEC) No 3922/91 is located" Home base: place from which aircrew member habitually carries out work in performance of his/her contract

7. Social Europe 1st Revision of the social security coordination rules Coordination of long-term care benefits (LTC) Coordination of unemployment benefits … 2009 – 2011 Evaluation 2012 – 2013 Impact Assessment 2014 Commission' proposals

8. Social Europe Revision of the social security coordination rules Objectives Improved social security protection for migrant citizens Enhanced effectiveness of the coordination regime Legal certainty for all stakeholders Simplification Roadmap: http://ec.europa.eu/governance/impact/planned_ia/docs/2013_empl_00 3_coordination_social_security_systems_en.pdf http://ec.europa.eu/governance/impact/planned_ia/docs/2013_empl_00 3_coordination_social_security_systems_en.pdf

9. Social Europe Coordination of LTC benefits Is the current system of coordination of long-term care benefits satisfactory? Is a new set of rules needed & how radical the changes should be? LTC within material scope of coordination Regulations Coordination under Chapter 1 – Sickness, maternity and equivalent paternity benefits Court of Justice (recent: C-208/07 Chamier-Glisczinski, C- 388/09 da Silva, C-206/10 Commission v Germany) No definition, no list of benefits

10. Social Europe Policy Options LTC benefits 1. Maintain the current situation 2. Keep the coordination as sickness benefits but clarify the legal framework by a new Chapter on LTC Benefits with a definition and the listing of all MS benefits in a specific Annex 3. MS of residence will provide all LTC benefits on the basis of its legislation (reimbursement from the competent state) 4. Competent MS will provide all LTC benefits to insured persons residing abroad (export)

11. Social Europe Chapter 6 - Unemployment benefits Room for simplification and clarification? Complex coordination regime for cross-border workers (Article 65 and new Article 65a of Reg 883), including the new reimbursement mechanism (Decision No U4) Application of the case-law of the Court of Justice (C- 131/95 Huijbrechts, C- 1/85 Miethe and Jeltes C- 443/11) Extension of the period of export of unemployment benefits Application of the principle of aggregation of periods

12. Social Europe Results of the public consultation N° of replies: 299 199 replies by individuals 100 replies on behalf of organisations or specialists Online summary: http://ec.europa.eu/social/main.jsp?catId=333&langId=en&consultId=12&vis ib=0&furtherConsult=yes

13. Social Europe Discussion Paper on Highly Mobile Workers Commission Task Force to identify problems and challenges for highly mobile workers, including social security coverage and tax matters Gathering of existing evidence and collective reflection on challenges

14. Social Europe Patient Mobility Patient Mobility Directive 2011/24/EU - transposition deadline: 25 October 2013 Need for dealing with the co-existence of two instruments: Guidance note of the Commission in 2012 (legal aspects) Workshops and discussions in the AC and SANCO Committee Communications Activities at national and EU level Practical Guide to be considered after transposition

15. Social Europe Residence Issues Politically sensitive issue Ad Hoc Group on Habitual Residence -Elaboration of Practical Guide (discussion in the AC in October) Study on the impact of mobility of non-active persons on residence based social security benefits - will be published on the COM website on 7 October 2013 Recent judgment of the Court in case C-140/12 Brey (pending case C-333/13 Dano)

16. Social Europe Myths and reality – Residence discussion Many non-active EU migrants come to my country because of higher social security benefits Non-active EU migrants are immediately entitled to social security benefits in my country EU law is too soft – allows abuse of rights No evidence of a "welfare magnet hypothesis" Only if Habitual Residence Test is passed Use of Fundamental Right of Free movement is never an abuse Migrants are contributing to the economic success Migration is an integral part of European past, present and future

17. Social Europe External Dimension of EU Social Security Coordination Communication (2012)153 final of 30.03.2012 Adoption of 2 nd package of EU negotation positions (Albania, San Marino, Montenegro and Turkey) Ongoing negotiations with 10 countries Question of Legal Basis (Articles 48, 72 (b) or 217 TFEU) – 26/09: judgement of 26 September 2013 in case C- 431/11 the UK v Council of the EU Negotiations of new Association Agreements with Caucasus Countries New Ad Hoc Group Follow up to 2012 Communication (Forum, etc.)

18. Social Europe EESSI Requirements Analysis of solutions Implementation

19. Social Europe II. Recent Case Law 1. "Residence issue" a) Wencel judgement of 16 May 2013, C-589/10 b) Swaddling judgement of 25 February 1999, C-90/97 c) Brey judgement of C-140/12 d) Dano case C-133/13 e) Flood case C-255/13 f) Kelly case C-403/13 2. "unemployment issue" a)a) Caves Krier judgement of 13 December 2012, C-379/11 b)b) Jonsson judgement of 20 March 2013, E-3/13 c)c) Jeltes judgement of 11 April 2013, C-443/11

20. Social Europe Judgement of 16.05.2013 in case C-589/10, Wencel For the purpose of the application of Reg. 883/2004 a person cannot simultaneously have two habitual residences in two different Member States; in case of doubt, the place of residence or centre of interest is determined by way of an overall assessment of all available information relating to relevant facts considering inter alia the various criteria listed in Article 11 of Reg. 987/2009.

21. Social Europe Judgement of 25.02.1999 in case C-90/97 Swaddling The term "residence" (Art. 1 (j) Reg. 883) has a Community-wide meaning. The length of (past) residence cannot be regarded as an intrinsic element of it. This applies in particular where a person returning to his home country mas made it clear that he intends to remain in his country of origin.

22. Social Europe Ad hoc Group on Residence "Residence" is defined as the place where a person habitually resides or where his centre of interest is to be found. This depends on a number of factors: family situation, duration and continuity of presence, employment situation, exercise of non-remunerated activities, housing situation) etc. A person who proves that his centre of interests is in the host State has shown having a sufficient genuine link with host State in order to claim special non-contributory benefits. Practice shows that institution often assumes that place of "residence" is identical with place where a persons has declared his home address. Mere Registration, however, is not sufficient and not decisive in case of doubt.

23. Social Europe Ad hoc Group on Residence Report contains number of concrete examples aimed at drawing attention to specific characteristics that might be common to many cases Students Pensioners Inactive mobile persons Report shall become part of the Practical Guide on the applicable legislation* *which is published on the website of the Commission http://ec.europa.eu/social/main.jsp?langId=en&catId=868http://ec.europa.eu/social/main.jsp?langId=en&catId=868

24. Social Europe Judgement of 19.09.2013 in case C-140/12 Brey Special non-contributory benefits can also be social assistance under the residence Directive (= different definitions of social assistance under EU law) Conditions under Art. 7 of the Directive have to interpreted narrowly Receipt or application of social assistance not sufficient to show unreasonable burden to system (= all systems which automatically deny social assistance to non- actives EU citizens are prohibited) Refusal only after individual assessment permitted Criteria - amount and regularity of income -possession of residence certificate - likely period of receipt; AND - extent of financial burden on whole system (e.g. number of EU beneficiaries) Consequence of entitlement under Regulation (= equal treatment) mentioned (points 38 – 44), but not clarified in final ruling."

25. Social Europe Case C-133/13 Dano Facts: Ms Dano and her child claim subsistence benefit in Germany (unemployment allowance II = SNCB under Annex X). Because of her lack of professional skills and her unfamiliarity with German, she is regarded as having only a very poor chance to find suitable employment on the German labour market. Questions: 1.Does the Regulation (883/2004) including Article 4 on equal treatment apply? 2.In the affirmative, does this prevent Member States to deny the claimants in full or in part access to the benefit in question "in order to prevent an unreasonable recourse to SNCBs"?

26. Social Europe Report of the ICT-GHK (DG EMPL) of September 2013 Non active migrants represent only a very small share (0.7 to 1% of overall EU population) and – accordingly, only a very small share of SNCBs beneficiaries. EU Migrants are, on average, more likely to be in employment than nationals living in the same country. The overall rate of economic non-actives among EU migrants has declined between 2005 and 2012. The main motivation of EU citizens to migrate and reside in a different MS is benefit-related as opposed to work or family related.

27. Social Europe Case C-255/13 Flood Mr Flood, an Irish national, was admitted to emergency hospital treatment in Germany during his holidays on the basis of an E 111 (later EHIC, later E 112) because of a bilateral infarct of his brain stem. As he prefers to be treated in Germany, he "stayed" there with his partner for 11 years in a rented apartment, but he intends to return to Ireland "as soon as possible". This, however, has proved to be difficult or nearly impossible due to his medical condition. The question arises, whether he should receive medical treatment in Germany under an E 112 or an E 106 form. This depends on whether he is actually still temporarily "staying" or, in the meantime, "habitually residing" in Germany.

28. Social Europe Case C-43/13 Kelly Ms Kelly was resident in Ireland and was there in insurable employment for just short of the last three years. She spend the last six months of her insurable employment in Northern Ireland, when she fell sick. Which legislation applies (lex domicilii or lex loci laboris). Ms Kelly does not fulfil the conditions for an illness benefit under British law, but only under Irish law? See also case C-382/4, Franzen.

29. Social Europe Case C-43/13 Kelly Article 11 (3) (a) Article 11 (3) (e) lex loci laboris lex domicilii Case 302/84Cases C-135/99 + C-522/10 Ten Holder Elsen + Reichel-Albert no loss of rights, no harmonisation when citizens exercise their right of free movement

30. Social Europe Judgement of 13.12.2012 in case C-379/11 Caves Krier Frères Sàrl  A condition of residence is, as a general rule, inappropriate as regards migrant workers and frontier workers since, having participated in the employment market of a MS, they have in principle established a sufficient link of integration with the society of the State.  A grant to employers of a subsidy for the recruitment of unemployed persons cannot be made subject to the condition that the unemployed person recruited has been registered as a jobseeker in that same Member State.

31. Social Europe Judgment of 20.03.2013 in case E-3/12, Jonsson Entitlement to UB for atypical frontier worker cannot be made conditional on actual presence in the EEA State concerned.

32. Social Europe Judgment of 11.04. 2013 in case C-443/11, Jeltes The provisions of Article 65 of Regulation No 883/2004 are not to be interpreted in the light of the judgment of the Court of Justice of 12 June 1986 in Case 1/85 Miethe. This means that typical and atypical frontier workers are treated differently in case of unemployment! Is this justified???

33. Social Europe Visit us @ http://ec.europa.eu/social-security-coordination http://www.facebook.com/#!/socialeurope Join the EU wide debate: http://www.yourideasforeurope.eu/ Thank you for your attention!