The judicial finetuning of the EU rules determining the applicable social security legislation

2021 ◽  
pp. 1023263X2110583
Author(s):  
A.P. van der Mei ◽  
E. van Ooij
Keyword(s):  
Social Security ◽  
Member State ◽  
Labour Market ◽  
Main Idea ◽  
Case Law ◽  
Free Movement ◽  
Full Time ◽  
Cross Border ◽  
Time Basis ◽  
The Eu

The conflict rules enshrined in Regulation 883/2004 on the coordination of social security were created six decades ago to offer those who exercise free movement rights ‘constant social security protection’. The main idea was to ensure that beneficiaries are always subject to the legislation of a single Member State and to indicate which Member State that was. Because beneficiaries were above all ‘standard’ employees working on a full-time basis for an indefinite period of time, it was initially quite easy to determine the ‘competent’ Member State. The processes of flexibilization, digitalization, enlargement and globalization, however, have posed new and often formidable challenges. In today’s dynamic labour market it is often particularly difficult to identify the applicable legislation, issues arise as regards swift and frequent switches in the applicable legislation, increased worker and company mobility may affect social security rights and problems have arisen because of the possible fraudulent use of the rules determining the applicable legislation. This contribution analyses some of the recent CJEU case law on topics like working in to or more Member States, posting, abuse and fraud, employment and/or residence outside the EU and gaps in in social security protection by EU workers. The overarching question is how, in the view of the CJEU, the classic conflict rules are to be applied so as to ensure cross-border movers continue to enjoy constant social security protection.

Do National Activation Measures Stand the Test of European Law on the Free Movement of Workers and Jobseekers?

2010 ◽  
Vol 12 (1) ◽  
pp. 81-103
Author(s):  
Herwig Verschueren
Keyword(s):  
Labour Market ◽  
Point Of View ◽  
Free Movement ◽  
European Law ◽  
European Level ◽  
The Third ◽  
Cross Border ◽  
Legal Context ◽  
Free Movement Of Workers ◽  
The Eu

Abstract This article examines the compatibility of national measures taken to stimulate non-active people to enter the labour market (the so-called activation measures) with European law on the free movement of workers and jobseekers. It will first give a short overview of the objectives of the European employment strategy, more specifically with regard to the activation of workers. Subsequently it will sketch the European legal context of the free movement of workers and jobseekers, with special attention for the measures taken at the European level to enable and stimulate labour migration within the EU and thus create a European labour market. In the third part, by way of example, we will have a closer look at a number of activation measures taken in Belgium and examine which problems could arise in cross-border applications from the point of view of European law.

Conclusion

2020 ◽  
pp. 197-202
Author(s):  
Jan Zglinski
Keyword(s):  
Member State ◽  
Dynamic Process ◽  
Case Law ◽  
Internal Market ◽  
Free Movement ◽  
State Autonomy ◽  
The Eu

This chapter summarizes the findings of the book and concludes. It explains the implications of deference for free movement law, the internal market, and Member State autonomy as well as for our understanding of judicial behaviour in the EU. The Court of Justice’s growing restraint in parts of its case law will set free capacities for greater activity in others, which may lead to a change of priorities within free movement law but also prompt a shift in attention towards other fields. Although the book identifies long-term developments in free movement adjudication, it, ultimately, remains a snapshot: the internal market is a dynamic process which will continue to evolve.

The CJEU’s case law on the role of posting certificates: A missed opportunity to combat social dumping

2020 ◽  
Vol 27 (4) ◽  
pp. 484-502 ◽  
Author(s):  
Herwig Verschueren
Keyword(s):  
Social Security ◽  
Member State ◽  
Case Law ◽  
Temporary Employment ◽  
Social Rights ◽  
The Social ◽  
And Control ◽  
Missed Opportunity ◽  
The Eu

The posting of workers between Member States of the EU has increased dramatically over the past decade. It has led to political and legal discussions on the employment and social rights of these workers during their temporary employment in the host Member State. As far as social security is concerned, these workers remain subject to the social security system of the sending Member State, provided that a number of conditions are fulfilled. Still, the application of these conditions and control of their observance did not turn out to be efficient and was even rendered problematic by the case law of the CJEU on the meaning of the so-called posting certificates. This article takes a closer look at the role of these certificates. It the analyses and discusses the case law on this and formulates some critical comments on it.

The EU Citizenship Directive: A Commentary

2019 ◽  
Author(s):  
Elspeth Guild ◽  
Steve Peers ◽  
Jonathan Tomkin
Keyword(s):  
Member State ◽  
Detailed Analysis ◽  
European Commission ◽  
Case Law ◽  
Free Movement ◽  
European Economic Area ◽  
Court Of Justice ◽  
Economic Area ◽  
The Right ◽  
The Eu

The EU Citizenship Directive defines the right of free movement for citizens of the European Economic Area. It applies to EU citizens and their family members who move to visit or reside in another Member State. This might at first seem like a straightforward definition, but immediately questions arise. Who determines if a person is an EU citizen at all? What about dual citizens of two Member States, or of one Member State and a non-Member State (a ‘third State’)? What is the position of EU citizens who move to one Member State, and then return to their home Member State? This book provides a comprehensive commentary of the EU’s Citizens’ Directive tracing the evolution of the Directive’s provisions, placing each article in its historical and legislative context. Special emphasis is placed on highlighting the connections and interactions between the Directive’s constituent provisions so as to permit a global appreciation of the system of free movement rights to which the Directive gives effect. Each provision is annotated containing a detailed analysis of the case law of the Court of Justice as well as of related measures impacting upon the Directive’s interpretation including European Commission reports and guidelines on the Directive’s implementation.

scholarly journals Freedom of lawyers to provide services under directive 77/2491

2018 ◽  
Vol 2 (1) ◽  
pp. 36-45
Author(s):  
Michael Siman
Keyword(s):  
Case Law ◽  
Free Movement ◽  
Professional Conduct ◽  
Cross Border ◽  
Provision Of Services ◽  
The Eu

The following article deals with one of the different forms of free movement of lawyers in the EU, i.e. the freedom to provide services on a temporary basis.  The relevant primary law alongside the applicable legislation, as interpreted by the Court in its case-law, is analysed. Special attention is paid to certain peculiarities of cross-border provision of services by lawyers, in particular the respect of rules of professional conduct.

scholarly journals The Last Habitual Residence of the Deceased as the Principal Connecting Factor in the Context of the Succession Regulation (650/2012)

2015 ◽  
Vol 5 (2) ◽  
pp. 130-146
Author(s):  
Max Atallah
Keyword(s):  
International Law ◽  
Case Law ◽  
Free Movement ◽  
Legal Certainty ◽  
Habitual Residence ◽  
Member States ◽  
Legal Definition ◽  
Eu Member States ◽  
Cross Border ◽  
The Eu

AbstractThe objective of this study was to gather information about the last habitual residence (LHR) of the deceased in the context of the upcoming EU Succession Regulation. In addition, the aim was to analyze the adequacy of the legally undefined LHR as the principal connecting factor in cross-border succession within the EU. This study was carried out as a part of a bachelor thesis conducted on the same subject. The data were collected from relevant jurisprudence, international law, national acts, the EU published materials and case law. These results suggest that the legally undefined LHR is an unstable connecting factor for the purposes of the Succession Regulation, since it cannot guarantee sufficient legal certainty, and hence, the EU citizens are not able to fully utilize their right to free movement. The findings indicate that there might be a need to amend a legal definition for the LHR, not only for the EU Member States to be able to apply the concept in an harmonized way, but also for the EU citizens to know whether they are considered habitually resident in a state or not.

scholarly journals Free movement of workers in the EU and occupational pensions

2017 ◽  
Vol 19 (2) ◽  
pp. 141-157 ◽  
Author(s):  
Marion Del Sol ◽  
Marco Rocca
Keyword(s):  
Case Law ◽  
Legal Framework ◽  
Free Movement ◽  
The European Union ◽  
Occupational Pensions ◽  
Minimum Standards ◽  
Court Of Justice ◽  
Free Movement Of Workers ◽  
The Eu ◽  
Cross National

The European Union appears to be promoting at the same time both cross-national mobility of workers and an increased role for occupational pensions. There is, however, a potential tension between these two objectives because workers risk losing (some of) their pension rights under an occupational scheme as a consequence of their mobility. After long negotiations, the EU has addressed this issue through a minimum standards Directive. Shortly before the adoption of this Directive, the Court of Justice also delivered an important decision in the same field, in the case of Casteels v British Airways. By analysing the resulting legal framework for safeguarding pension rights under occupational schemes in the context of workers’ mobility, we argue that the application of the case law developed by the Court of Justice in the field of free movement of workers has the potential to offer superior protection compared to the Directive. We also highlight the fact that the present legal framework seems to afford a much fuller protection to the intra-company cross-national mobility of workers employed by multinational companies, while also seemingly favouring mobility for highly specialised workers.

Square Pegs and Round Holes: The Free Movement of Persons Under EEA Law

2017 ◽  
Vol 19 ◽  
pp. 165-186
Author(s):  
Christian NK FRANKLIN
Keyword(s):  
Free Trade ◽  
Case Law ◽  
Fundamental Principle ◽  
Free Movement ◽  
Trade Association ◽  
Eu Law ◽  
European Free Trade Association ◽  
Court Of Justice ◽  
Free Movement Of Persons ◽  
The Eu

AbstractWhilst the European Union’s aim of achieving an ‘ever closer Union’ is not an objective of EEA cooperation, homogeneity demands that we follow the same path: as the Union gets ever closer, so too does EEA cooperation, in light of the demands of the fundamental principle of homogeneity. This is particularly well demonstrated by looking at developments in the field of the free movement of persons. The case law of the Court of Justice of the European Free Trade Association (EFTA Court) in this field shows that in situations where homogeneity is put to the test, there seems little to suggest that a more national sovereignty-friendly approach has been adopted than under EU law. Notwithstanding the integral differences between the EU and EEA legal constructs, the EFTA Court has proven highly adept at keeping pace with EU developments in the field through a number of bold and creative interpretations of EEA law, and by using different tools to arrive at uniform conclusions.

Introduction

2020 ◽  
pp. 1-8
Author(s):  
Jan Zglinski
Keyword(s):  
Empirical Study ◽  
Member State ◽  
Case Law ◽  
Free Movement ◽  
State Courts ◽  
State Action ◽  
European Court ◽  
National Autonomy ◽  
Eu Free Movement Law

This introductory chapter sets out the themes of the book. Doctrines of judicial deference have begun to appear with growing regularity in the European Court of Justice’s free movement case law, especially in relation to Member State action. Their application has been controversial, which is unsurprising in light of the constitutional issues which deference raises: should judges intervene in the work of the legislators? How far can the EU restrict national autonomy? And what is the division of power between European and Member State courts? The chapter sketches the approach taken in the book and explains the empirical study on which the analysis is based. The idea of the ‘passive virtues’ is introduced and linked to the developments in EU free movement law.

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