SNCBs in between Territoriality and Free Movement of Persons

1. SNCBs in between Territoriality and Free Movement of Persons Nicolas Rennuy PhD Fellow of the Research Foundation Flanders (FWO), Ghent University 14 May 2012 nicolas.rennuy@ugent.be

2. SNCBs, a semi-territorial regime? • Two dimensions • The scope of the SNCB regime • Jauch, Leclere, Skalka, Kersbergen-Lap, Perez Naranjo, Commission v Parliament & Council, Bartlett • The substantial aspects • The general principles of Reg. 883/2004: non-discrimination, assimilation, aggregation • The TFEU: prohibition of discriminatory and non-discriminatory restrictions • (derived rules of assimilation, aggregation and export?) • Increasing permeability between Reg. 883/2004 and the TFEU • E.g. Snares, Collins, Hendrix, but Bartlett

3. The horizontal principles • The common denominator of the non-discrimination, assimilation and obstacles tests: • The prima facie breach • The prohibited criteria • Nationality • Migration • Origin of benefits, income, facts and events • Non-discriminatory obstacle • (The disadvantage) • (The comparability)

4. The horizontal principles • The justification phase • Objective, legitimate and overriding grounds of justification • Purely economic aims (Bond van Adverteerders) • The financial balance of the social security system • Unsatisfied burden of proof (ITC; Habelt; Petersen) or inappropriate means (Morgan) • Stewart: “the necessity of establishing a genuine and sufficient connection between the claimant and the competent Member State enables that State to satisfy itself that the economic cost of paying the benefit at issue in the main proceedings does not become unreasonable” • Administrative aims (Terhoeve; Gottardo) • Control measures • Measures preventing overlap of benefits

5. The horizontal principles • (Demographic grounds) • Real link between individual and • the labour market • society • the social security system • Suitability • (Fit) • Proportionality • The intensity of review: time, the defendant (EU or MS), the invoked ground, the benefit at issue, …

6. The principle of assimilation • Art. 5 Reg. 883/2004 • “Unless otherwise provided for by this Regulation and in the light of the special implementing provisions laid down, the following shall apply: (a) where, under the legislation of the competent Member State, the receipt of social security benefits and other income has certain legal effects, the relevant provisions of that legislation shall also apply to the receipt of equivalent benefits acquired under the legislation of another Member State or to income acquired in another Member State; (b) where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory.” • Art. 10a(3)-(4) Reg. 1408/71 • Identical two-tier mechanism • Prima facie non-assimilation ; justification (except for ad hoc assimilation clauses of Reg. 1408/71?) • Scope: horizontal – residual • E.g. art. 70 Reg. 883/2004 and art. 6 Reg. 883/2004 • De-territorialisation

7. The impact of the horizontal principles on SNCBs • Overview • Export? The Hendrix and Bartlett cases • Conditional lawfulness of the SNCB regime • Special + non-contributory + cash (Jauch) • Snares: 0+x • Aggregation • Assimilation

8. Export of SNCBs? • The Hendrix-test • Prima facie breach of art. 45 TFEU & art. 7(2) Reg. 1612/68 • Justification: • The close link to the socio-economic situation • The (lawful) SNCB regime • Proportionality: CRvB interprets the hardship clause ~ “all of his economic and social links” • Intensity of review

9. Export of SNCBs? • Reach • The hardship clause? • (Art. 2:13(3) and 3:19(9) Wajong) • Baumbast, Petersen – “real link” case law – Van Munster – CRvB • A de facto hardship clause for all SNCBs • The economic link – “professional” SNCBs • Outside the Reg.: EAP can export professional benefits • C-35/97 EC/France; Meints • “semi-professional” SNCBs are exportable as a rule

10. Export of SNCBs? • The economic link– “solidaristic” SNCBs • “Real link”-requirement is justified • Outside the Reg. (Meeusen, Geven, Hartmann): a(n) (substantial) economic link vests a presumption • SNCBs: exportable as a rule • The social link • Outside the Reg.: • habitual residence • an in concretoassessment of links of individual (and family?) with society and the social security system (and the labour market)

11. Export of SNCBs? • E.g. prior residence (Morgan, Nerkowska, Stewart), past or present employment (Hartmann, Hendrix, but Geven), connection to the social security system (Stewart), the claimant’s family circumstances (Stewart), nationality? (Stewart) • SNCBs:

12. Export of SNCBs? • Overview: • EAP + “professional” SNCB = export as a rule • EAP + “solidaristic” SNCB = export as a rule • N-EAP + “solidaristic” SNCB • Administrative implications • In concreto assessment • Anti-overlapping provisions

13. Export of SNCBs? • C-537/09 Bartlett • Question: “is any other rule or principle of EC law relevant to the question of whether the United Kingdom is entitled to rely on any of the residence and presence conditions”? • Reformulated question: is art. 10a Reg. 1408/71 valid? • Impact on Hendrix?

14. Past residence or insurance • Aggregation • Art. 10a(2) Reg. 1408/71 • Art. 6 Reg. 883/2004 • Collins: in the absence of periods in a MS, the TFEU • O+x? • When does competence arise? • Swaddling: “the length of residence in the Member State in which payment of the benefit at issue is sought cannot be regarded as an intrinsic element of the concept of residence” • Art. 1(j) Reg. 883/2004 j° art. 11 Reg. 987/2009

15. Past residence or insurance • Can the competent MS require the completion of one period under its legislation? • Snares • “benefit entitlement is not conditional on the claimant's having previously been subject to the social security legislation of the State in which he applies for the benefit” • Reg. 883/2004. Bergström. • The competent MS must aggregate periods of insurance, residence or (self-)employment, even if no such periods were completed under its own legislation

16. The Wajong • Past residence and residence at the moment of occurrence of invalidity • Permanent or temporary ineligibility: • the young handicapped person who has not been resident for the six years immediately preceding his 17th birthday and [who suffered from complete invalidity when s/he they took up residence in The Netherlands or where (partial or complete) invalidity occurred within half a year provided such development was foreseeable] (art. 3:11 Wajong) • Art. 6: residence in the EU

17. The Wajong • Residence at moment of occurrence of invalidity • Art. 10a(4) Reg. 1408/71: assimilation of “first diagnosis” • C-481/93 Moscato and C-482/93 Klaus: aggregation covers such conditions (cf. Art. 10a(2) Reg. 1408/71 & art. 6 Reg. 883/2004) • Art. 5(b) Reg. 883/2004? • 6 years of past residence • Art. 10a(2) Reg. 1408/71 and art. 6 Reg. 883/2004

18. The Wajong • The status of “student” • Art. 1:4 Wajong: a national concept • Art. 2:43, art. 3:2, art. 3:11 Wajong, UWV 1/6/2006 (Stcrt. 2004, 115) • D’Hoop, Ioannidis, art. 5(b) Reg. 883/2004 • The assessment of incapacity • Art. 3:1(2) Wajong • “work” and “training” • Any territorial condition

19. The Toeslagenwet • Export: cf. above • The supplemented benefit • Art. 10a(3) Reg. 1408/71 & art. 5(b) Reg. 883/2004 • Non-computed periods • Income is disregarded for a maximum period of two years + periods of receipt of Dutch sickness benefits (art. 7(3)) • Paraschi, Duchon, art. 5(b) Reg. 883/2004