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Commission takes Germany to court on social security rights of disabled migrant workers

28/01/2010 Commission takes Germany to court on social security rights of disabled migrant workers

The European Commission is taking Germany to the European Court of Justice because of provisions which prevent handicapped, blind and deaf people from accessing their benefits if they work in Germany but live elsewhere.

Legislation in all German regions (Länder) impose a residence or "habitual stay" clause to these benefits which puts migrant and cross-border workers and their families at a disadvantage. According to EU provisions, this requirement discriminates against frontier and migrant workers who pay social security contributions in Germany but are unable to enjoy the same benefits as nationals.

Legislation in all 16 German Länder (the German regions) currently applies a residence or "habitual stay" clause to their benefits for handicapped, blind and/ or deaf people. Based on the European Court of Justice's (ECJ) case law, these benefits should be considered as sickness benefits and therefore fall under EU provisions on coordination of national social security systems. This means that where Germany is competent for the social security coverage of a worker, these benefits must be exported even when the worker or a member of his/her family lives abroad.

Frontier workers (people employed or self-employed in one Member state, residing in another Member state to which they return, as a rule, daily or at least once a week) are insured in the state where they work even though they reside elsewhere. A frontier worker employed in Germany will therefore pay his social security contributions in this country and, according to EU law, should enjoy the same social advantages as nationals. Making access to benefits for handicapped, blind or deaf people conditional upon residence is therefore a discrimination against migrant and frontier workers and their families.

Based also on the most recent ECJ judgement of 18 October 2007 in case C- 299/05, the Commission sent Germany an additional reasoned opinion on 1 December 2008 inviting Germany to fulfil its obligations.

The Commission has decided to refer the case to the ECJ as Germany still does not comply with Community law since the German Länder continue to apply the residence or habitual stay clause to their benefits for handicapped, blind and/ or deaf people.