1. organising training and setting up networks on the
European Coordination of Social Security Schemes
in the 27 Member States
National trESS Seminar
Experiences with ECJ-court rulings
concerning export of benefits and access
to benefits
Copenhagen 23.9.2011
Bernhard Spiegel

2. Main issues
•Main focus Entitlement and Export:
•EU-Principles - Some examples
•Don’t expect a systematic overview
•Flashlights
•Achievements:
•Newest developments –
•2 AC decisions to show complexity we have achieved
•Burning political issues
•Family benefits
•Long-term care
•Assimilation of facts
•Minimum benefits – social tourism
•Anything else?
–Mobility of 3rd country nationals
–Association Agreements
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
•Denmark:
•First lesson I had to learn
“Denmark is different” – tax financed residence based social security scheme
•Is this still valid?
•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 checekd by the ECJ (C-215/99, Jauch, C-160/02, Skalka and C-286/03, Hosse)
•Denmark?
•Cases before the ECJ? On Reg. 1408/71?
•Statistics of the ECJ (all preliminary rulings cases):
• DK: 125 AT: 348
•Why?
Bernhard Spiegel

4. Starter: Pensions - Decision No. H6 -
Aggregation
• Starting point:
– SED P5000
– Problem Commission – Germany
• Periods for entitlement/calculation/both?
• Is now everything clear?
– First Art. 6 (aggregation all periods), second Art. 5
(Assimilation) –
– How far goes Art. 5 (e.g. periods of residence in AT?)
– Aggregation of periods of residence or assimilation of
residence abroad? (case C-503/09, Stewart)
– Still a mystery: what means „to the extend
necessary“?
Bernhard Spiegel

5. Decision No. S8 substantial benefits in kind
[not yet published]
• Starting point:
– Art. 33 Reg. 883/2004
– Continuation of entitlement to benefits when competence
changes in between
– List to be established by the AC
• Is now everything clear?
– Prostheses, major appliances and other substantial
benefits in kind … defined as such in the MS concerned; +
– Indicative list … contact lenses, wheelchairs … tailored to
specific personal needs (?)
– How does this work in practice?
• Come back to the MS?
• Refund the treatment in new competent MS?
Bernhard Spiegel

6. Family benefits – cases against Austria
• Starting point
– In Austria and nearly all other MS: residence based scheme
– It is not an Austrian monopoly to have problems with family benefits!
– Legislator has not solved the main questions.
• Many cases – export and entitlement
– Child-raising benefits are family benefits (DE C-245/94, Hoever and
Zachow)
– Also suspended employment relationship is exercise of employment
(AT C-543/03, Dodl and Oberhollenzer) and situation of whole family
relevant (no individualisation)- is this a good solution?
– Who is an employed person exercising an employment (AT C-516/09,
Borger)?
– Advances to maintenance grants are family benefits (AT C-85/99,
Offermanns, C-255/99, Humer)
– How do we apply the AT C-363/08, Slanina case?
Bernhard Spiegel

7. Family benefits – unsolved questions
• Status quo
– In Council long discussion
– No solutions – Austria guilty?
– Good example: ECJ has to fill the gaps.
• Main issues: Differential supplement?
– Per child or per family?
– One basket or for each category of benefits (family allowances and
„child raising/education“ benefits)?
– Which period: per year/whole possible period (benefits which could
be modulated as to the duration by the recipients)?
– New priority rules? How do we apply the C-363/08, Slanina case?
• Priority of divorced father over new parent?
• More than 3 simultaneous openers of entitlements per child?
Bernhard Spiegel

8. Long-term care – a case study
• Start: DE C-160/96, Molenaar – Plan: benefit in
kind – ECJ: cash benefits contributory, linked to
health care – sickness cash benefit
• AT C-215/99, Jauch – Plan: special non-
contributory benefit (Annex IIa) – ECJ: sickness
cash benefit, not special, not non-contributory
• AT C-286/03, Hosse – Plan: regional special non-
contributory benefit (Annex II/III) – residual
scheme – ECJ: sickness cash benefit
• Many other benefits included – are there still
any benefits outside?
Bernhard Spiegel

9. Long-term care – status quo
• ECJ not to blame
• Coordination as sickness benefits
– Benefits in kind by local institutions with reimbursement
– Benefits in cash exported by the competent MS
• Problems with:
– Export from residence based schemes
– Benefits tailored for local needs
– Benefits which go hand in hand with the provision of local social
services
– Art. 34 of Regulation 883/2004 to prevent overlapping
Bernhard Spiegel

10. ECJ C-388/09, da Silva Martins
[Decision of 30.6.2011]
• Case: receipt of German and Portuguese pension;
residence PT
• Subject to PT health care system, does not provide for
LTC benefits (?)
• Is it possible to continue voluntary LTC-insurance in DE?
Has DE to export LTC cash benefit?
• ECJ: Yes! Even if PT knows LTC benefit in cash –
differential payment by DE
• Remaining questions: only for contributory benefits?
• Art. 34 Reg. 883/2004 does not work in such a case
– Overcompensation!
• Combined with C-352/06, Bosmann, always the best of
both worlds?
Bernhard Spiegel

11. Long-term care
[Work in progress]
• trESS Think Tank Study – will be available in winter 2011
• Purpose:
– Mapping of existing schemes
– Describing the challenges
– Proposing solutions
• Still many problems and misunderstandings
• What is social assistance excluded from Reg. 883/2004?
– National systematic not relevant!
– Also local municipalities can run social security schemes
– What is „entitlement“?
• Coordination under different chapters of Reg. 883/2004
• Still many cases of overcompensation or exclusion from
entitlements when sickness chapter is applied
Bernhard Spiegel

12. Assimilation of facts – Child raising periods
• NEW: Art. 5 of Reg. 883/2004 – what cases concerned in
DK?
• Periods of residence?
• Child raising periods under AT legislation only for child
raising in AT
– ECJ C-28/00, Kauer, discriminatory – if close relation of period
abroad with AT –
– Which are the limits?
– Principle: Recital 10 – periods only via aggregation
– BUT: Art. 44 of Reg. 987/2009 extension
– BUT: EC goes beyond that in C-522/10, Reichel-Albert
• No competence of DE at the moment the periods abroad could be
taken into account
Bernhard Spiegel

13. Minimum benefits – social tourism?
Political dimension
• AT example recipients of small pension from other
MS (BG und RO) come to AT:
– Never before relation to AT – no AT pension
• But also: parents want to move to their children active in AT
– Claim AT minimum pension (~ € 800 a month, top up only
to AT pensions) – Art. 5 of Reg. 883/2004
– Thus achieve also a residence right in AT
• Social tourism (what is the position of the TFEU?)
• Complaints, attacks against the government
– All other MS are not so stupid
Bernhard Spiegel

14. AT minimum pension for EEA pensioners
Bernhard Spiegel

15. AT minimum pension for EEA pensioners
Bernhard Spiegel

16. Minimum benefits – legal dimension
• All these benefits are residence based
• Reg. 883/2004: entitlement due to assimilation of
facts – from what moment on?
• Dir. 2004/38/EG: right to reside for the 5 years in
case of inactive persons only, if they have
– Comprehensive health care coverage
– Sufficient resources so that they do not become a burden
on the local social assistance scheme
– Special rules for workers/unemployed/family members
• What comes first?
– Social security experts/immigration law experts
Bernhard Spiegel

17. 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 removal from the
territory or denial of benefit if residence “tolerated” (ECJ C-
456/02, Trojani)?
• Different opinions of MS/EC/academic world (trESS Think
Tank report 2008
Bernhard Spiegel

18. Minimum benefits – status quo
• Reactions in Austria:
• Enforced control mechanism to check “residence” in AT
• Minimum pension only in case of “legal” residence in AT
• Top up to minimum pension means social assistance under
the AT residence law
• Reactions in the EU:
• Initiative of 13 ministers for social affairs during meeting
of Council (17.6.2011)
• Demanding: immediate start of work on changes of legal
framework
• Infraction procedure (UK – habitual residence e.g. for
income support or state pension credit)
Bernhard Spiegel

19. Association Agreements
• Council has decided on Decisions
• Algeria, Marocco, Tunesia, Israel, FYROM und Croatia
• Many effects?
• Equal treatment – already many obligations under ECHR
(case Gaygusuz)
• Same coordination as under Reg. 1231/2010
• What applies to DK? Legal base Art. 79 TFEU)
• Problem Turkey– ECJ C-485/07, Akdas
• Export non-contributory benefits listed in Annex IIa of Reg.
1408/71
• Perfect example how problems are made in Europe:
• Legislation is not clear
• Rapid development of the legislation
• European legislator does not react
Bernhard Spiegel

20. Mobility of 3rd country citizens
Many different legal acts (no problem for DK?)
• Dir. 2003/109/EG status of 3rd country nationals who are long-
term residents (equal treatment after 5 years of legal
residence)
• Dir. 2005/71/EG admitting 3rd country nationals for the
purposes of scientific research (equal treatment – family
benefits for AT + DE excluded?)
• Dir. 2009/50/EG 3rd country nationals for the purposes of
highly qualified employment („blue card“) (equal treatment –
family benefits for At + DE excluded?)
• („single permit“)
• Saisoniers
• Intercorporate Transferees
• …. etc.
• Problem always equal treatment + export of pensions
– National autonomy?, does community law contain already
obligations?, ECHR etc.
Bernhard Spiegel

21. Short summary
• AT has many experiences with the ECJ
• More clarity but 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