EU Regulations
OVERVIEW OF THE EU REGULATIONS ON CO-ORDINATION OF SOCIAL SECURITY FOR MIGRANT WORKERS
Table of Contents
1. Introduction
Background
2. History
3. General principles
A. Discrimination on grounds of nationality
B. The "applicable legislation" principle
C. The "aggregation" principle
D. The "export" principle
Scope of the Regulations
4. Personal scope
5. Territorial scope
6. Material Scope
7. BENEFIT ARRANGEMENTS
1. INTRODUCTION
Social security schemes in countries belonging to the European Union (EU) or the European Economic Area (EEA) are co-ordinated by Council Regulations (EEC) Nos. 1408/71 and 574/72.
The aim of the regulations is to protect the acquired social security rights of those moving within the European Union and European Economic Area. The Regulations do not harmonise the different Member State's schemes. Instead, Regulation (EEC) No. 1408/71 contains detailed rules which co-ordinate rights granted under the different national legislations (e.g. by requiring one State to take into account contributions paid in another) while Regulation (EEC) No. 574/72 contains detailed rules for implementing Regulation No. 1408/71.
BACKGROUND
2. History
The Treaty of Rome, which founded the European Economic Community, set out certain objectives and established Community Institutions necessary to attain them. One of these objectives is the free movement of workers. Article 51 of the Treaty provides for the adoption of social security measures necessary to realise this objective. The first such measure, Regulation No. 3, providing rights for employed migrant workers, pensioners and their dependants, was adopted by the Community in 1958. In 1971, this was replaced by the wider-ranging Regulation No. 1408/71 which has since been progressively amended and updated. The Regulation now covers employed and self-employed persons and members of their families. It does not cover the non-active i.e. those who have never worked and are not already covered as a member of the family of an employed or self-employed person.
3. General principles
The aim of the regulations is to protect the social security cover, including health care, of those covered by the Regulation when they move around the European Economic Area. The Regulations are based on four main principles to achieve that goal:
Discrimination on grounds of nationality
A. Discrimination on grounds of nationality is prohibited.
Member States must not discriminate against the nationals of other Member States.
The "applicable legislation" principle
B. A person is subject at any given time to the legislation of one Member State only (the "applicable legislation" principle).
The general principle is that a person is subject to the legislation of one Member State at any one time. Workers are normally subject to the legislation of the State in which they are working, regardless of their place of residence or the location of any employer. There are a number of exceptions to this rule, the best known of which relates to the posting of workers abroad.
The legislation to which a person is subject is applicable both for the levy of contributions and for the payment of benefit. The purpose of having one legislation applicable is to avoid conflicts of law which could arise from the application of the different criteria for coverage under the national social security schemes.
The "aggregation" principle
C. Entitlements built up in one Member State should be recognised when calculating benefit entitlement in another (the "aggregation" principle)
Entitlement to certain benefits in Member States are subject to completion of a qualifying period of insurance, employment or residence. Situations could arise in which a migrant worker had worked in a number of Member States without acquiring entitlement to benefit in any of them. Such a situation would hamper the free movement of workers enshrined in the EEC Treaty.
In order to remedy such a situation, Regulation (EEC) No. 1408/71 contains a number of provisions providing for the aggregation of periods of insurance or residence in Member States in order to acquire the right to benefits. There are separate provisions relating to aggregation covering the various benefits.
The "export" principle
D. Benefits are payable outside the national territory (the "export principle").
The Regulations provide that Invalidity, Old Age, Survivors' Pension and pensions for accidents at work and occupational diseases which have been acquired under the legislation of a Member State must be paid to the person concerned even if he or she resides in another Member State and cannot be subject to any reduction or modification. Liability to export other benefits is more limited e.g. unemployment benefits are only exportable in very specific circumstances and for a maximum of three months. Certain non-contributory benefits are not exportable - see 6 below.
Scope of the Regulations.
4. Personal scope
The Regulations apply to employed or self-employed persons and those who have been employed or self-employed e.g. pensioners, who are EU/EEA nationals (or refugees or stateless persons) and also to members of their families (irrespective of the nationality of the latter).
5. Territorial scope
Persons covered can rely on the Regulations in all of the countries belonging to the EU or EEA. These are:
Austria; Belgium; Denmark; Finland; France; Germany;
Greece; Iceland; Ireland; Italy; Liechtenstein;
Luxembourg; The Netherlands; Norway; Portugal; Spain;
Sweden; United Kingdom (including Gibraltar).
6. Material Scope
The Regulations apply to legislation concerning both contributory and non-contributory benefits covering sickness and maternity (including health care, referred to in the Regulations as "benefits in kind"), accidents at work and occupational diseases, invalidity benefits, old age, survivors, death, unemployment and family. The regulations do not apply to social and medical assistance (e.g. Supplementary Welfare Allowance) or occupational pension schemes.
The Regulations also apply to special (non-contributory) benefits which are intended to provide supplementary, substitute or ancillary cover against the above-mentioned risks or are provided solely as specific protection for the disabled. The special non-contributory benefits are listed in Annex ii of Regulation No. 1408/71 and are not payable outside the State. Payment of these benefits is the responsibility of the State of residence and are payable in that State.
The Irish benefits administered by the Department of Social Protection which fall into the category of special non-contributory benefits are as follows;-
- Unemployment Assistance
- Old Age and Blind Pensions
- Widow's and Widower's (non-contributory) pensions
- Orphan's (non-contributory) Pension
- One Parent Family Benefit
- Carer's Allowance
- Family Income Supplement
- Disability Allowance
7. BENEFIT ARRANGEMENTS
The regulations take precedence over national legislation.
More details regarding the operation of the regulations in relation to the protection of social security rights of persons moving move within the EU/EEA is provided in the respective guidelines covering the individual schemes.