CYIL 2015

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HARALD CHRISTIAN SCHEU

CYIL 6 ȍ2015Ȏ

his recourse to the social assistance system, but the host Member State should take

into account the temporariness of potential difficulties, the length of stay, the personal

situation of EU citizens and the amount of assistance which has already been provided.

These rules sufficiently indicate a certain space for those who migrate into

the social systems of Member States, although, at first glance, this space seems to

be very narrow. An inactive Union citizen whose residence, in the light of CJEU

jurisprudence, does not amount to an “unreasonable burden on the social assistance

system” has the right to reside in another Member State and may gain access to social

benefits provided by national law. From the perspective of migration law, such a

concept of free movement can be considered as the first pillar of a social union.

The second pillar of the social union can be seen in Regulation 883/2004 of

29 April 2004 on the coordination of social security systems.

While previous law,

i.e. Council Regulation 1408/71/EEC of 14 June 1971, expressly covered workers,

self-employed persons and students from EU Member States, Regulation 883/2004

extended the personal scope of the coordination rules to all nationals of a Member

State.

Following this extension of personal scope, Regulation 883/2004 covers the

rights of both economically active and inactive EU citizens.

The concrete rules concerning the coordination of social systems primarily refer

to a situation where EU citizens are exercising economic activities in more than one

Member State or reside in a Member State other than that in which they acquired

social entitlements. The main idea of Regulation 883/2004 is that the exercise of

the right to freedom of movement shall not be associated with any disadvantages

in the field of social benefits. A more detailed analysis of Regulation 883/2004

would far exceed the scope of this paper.

We only want to focus on the problematic

relationship of the Regulation to Directive 2004/38 and highlight the specific impact

of the relevant rules on the social rights of inactive EU citizens.

Given that the aim of Regulation 883/2004 is not the harmonization but the

coordination of social security systems of the Member States, it is up to the Member

States to regulate access to social benefits. Regulation 883/2004 extends to all areas

of social security, but not to the area of social assistance. According to Article 3,

See also Regulation 465/2012/EU of 22 May 2012 amending Regulation (EC) no. 883/2004 on the

coordination of social security systems and Regulation (EC) no. 987/2009, laying down detailed rules

for implementing Regulation (EC) no. 883/2004.

Cf. Article 2 of Regulation 1408/71 and Article 2 of Regulation 883/2004. It should be noted that

Regulation 883/2004 also applies to certain groups of citizens of third countries. The inclusion of further

groups of third-country citizens into the system of social security coordination is provided by Council

Regulation 859/2003/EC, which extends the application of the provisions of Regulation 1408/71/EC

and Regulation 574/72/EEC to nationals of third countries, and EP and Council Regulation 1231/2010/

EU, which extends the personal scope of Regulation 883/2004/EC and Regulation 987/2009/EC to third

country nationals.

For a detailed commentary, see Schreiber, F. Wunder, A. Dern, S. VO (EG) Nr. 883/2004. Europäische

Verordnung zur Koordinierung der Systeme der sozialen Sicherheit. Kommentar. München, 2012.