(Photo: From “Why Social Security?” (1937) © Tobias Higbie)
What is the current modification of the social security legislation in force is all about?
May I underline that this proposal can be regarded as a mainly technical simplification. It does not recodify the whole legal framework as such. The modifications only aim at facilitating the smooth coordination of national social security systems.
Legal facts of the modifications
The main content of the proposed modifications by the Commission is the following:
Article 13 (1) (substantial part),
Article 65 (5) (self-employed person); and
Article 71 (2) voting procedure of the Administrative Comission of Regulation (EC) No 883/2004
as well as
Article 14 (5) (marginal and ancillary activities),
new Paragraph 14 (5a) (registered office of aircrew members) and
Article 56 (2) (Priority of Job-seeking activites) of Regulation (EC) No 987/2009
The European Pariliament proposes 2 main additions to the text
– Unemployment benefits for self-employed frontier workers, and
– Provision of new measures for aircrew members through creating a special rule by using the notion of “home base” as the criterion for determining the applicable legislation for aircrew members.
We can lay down that there are no fundamental differences between the original COM proposal and the EP’s position, they are both going to the same direction. Therefore, instead of trying to find the still existing but not-substantial differences, we shall focus on the broader context of the social security law in the EU.
Legal overview on social security coordination in the EU
In my opinion, social security related EU law is one of the most complicated legal areas of the EU. One of the main reason behind it is surely that the establishment, the maintenance and the financing (!) of social security schemes belong to the competence of the Member States. This means not less than the EU may not harmonize completely these Member States-based, costly systems and it may only coordinate these schemes (see Article 48 and 352 of the TFEU).
The political and financial importance of health, pension and strictly regarded social policy is obvious and the full analysis of this political and financial dimension extends over the scope of our strict legal point of view. Since a lawyer in my position has to find the answer to the following question: if it is so fundamental for the Member States then why can the law of the Union play a crucial role in the social security systems?
The answer is clear: because of its European dimension.
The right to the social security (in kind and in cash) benefits is an important component of the free circulation of persons, which is one of the most important 4 principles of the whole EU. Without the possibility of transfer of these benefits from one Member State to another one, the freedom of movement would be illusory.
And this is the point: we know very well from our own experiences how complicated are the legal rules and institutions which coordinate these important social, pension and health benefits in our respectable country. There are so complex and so different from each other that even the coordination of social security systems between 2 Member States would be extremly difficult and would therefore need a bilateral agreement on social security (Not to mention that each legal agreement would need the conclusion of supplementary administrative arrangements, as well). Without the EU, the sovereign European States would have to conclude single treaties but even these treaties could not handle appropriately the special case if a person would accumulate rights in more than 2 countries and the number of concerned states may easily increase. A migrant worker working for a company having seat in – let’s say – 20 Member States may easily overload these imaginary bilateral agreement-based system.
What would be the appropriate solution?
Only a multilateral agreement could deal with all countries but regarding the basic differences among the national social security schemes, the negotiation of such an agreement would need decades.
This is the case currently between EU Member States and third, non-EU States. If an EU Member state was willing to make closer social-security coordinating rules with another third state with regard to heir tight economic, politic and cultural relations which may imply migration, they would have to conclude a bilateral agreement. Even one treaty needs time- and resource consuming negotiations which may lead to a several years taking negotiation process. Nevertheless, EU Member States have several treaties on social security in force with third states.
Fortunately, the above mentioned problem was well known by the legislators when they elaborated the appropriate legal tool in the European Economic Community to solve this problem. They created a carefully worded Regulation which could function as a ‘quasi multilateral agreement’ among the EU Member States, even better since the enforcement of the Community law is much more effective due its direct effect and applicability.
The mentioned regulation was the original Regulation (EEC) No 1408/71 which has been elaborated for more than 40 years (!). The current prevailing regulations (EC/883/2004, EC/987/2009) replace the original ones and they have been adopted after gaining more than 30 years of experiences concerning the application of social security schemes in Europe in a European dimension.
What does it mean exactly? If one consider that the current regulation is extremly complicated, she or he may be right. But regarding and appreciating the long European way which led us from the seventies to the current rules, we can regard them as already remarkably simplified rules.
All main decisionmaking EU-institutions are on the same side and both the Commission and the Parliament intend to further simplify and develop the existing coordination rules for social security schemes.
Since in the globalized XXI.th century the migration reaches a never experienced high level which implies strong demands on social security schemes, further adaptation of the coordinating rules to the changes seems to be essential to achieve the sustainability of those systems.
These intentions fit in a long ago started european simplification procedure which could be considered as a useful and necessary evolution of the eu law on social security.
Those who are willing to study the details of this file can do it easily on the official website of the European Parliament.
Last but not least, may I draw your attention to an interesting Euractive article dealing with the social security rights of crew workers:
I remain at your disposal.
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