Legal basis: Annex I to Regulation 883/2004
The fact that childbirth allowances are excluded from the scope of the coordination regulation, does not imply that Member States can discriminate on the basis of nationality or can legitimately impose residence conditions for entitlement to these benefits. The Treaty provisions on equality of treatment and free movement of persons remain applicable. For instance, as a migrant worker or a member of his/her family, you could rely on Article 7(2) of Regulation 492/2011 to challenge an unjustifiable residence condition for entitlement to childbirth allowance in the legislation of the State where you work. See also the keywords material scope, free movement of workers and citizen of the EU.
Example 2: Ms. Z works in State A and resides in State B. When her child is born, she takes up maternity leave. After the end of the leave, she does not return to work but stays at home in order to raise her child.
The legislation of many Member States provide that periods devoted to child-raising (or child-rearing), during which the professional activity is interrupted or ceased and hence no (employees’) contributions are paid, are nevertheless taken into account for the purposes of the calculation of old-age pensions (or invalidity pensions whose amount is dependent on the length of the insurance period).
In accordance with the principle of assimilation of facts (see the relevant keyword), the institution of the competent State (State A in example 1) must take into account periods of child-raising completed in the State of residence (State B in example 1), as if this child-raising took place in its territory.
The regulation provides that this may also be the case when, as a result of having ceased work (and not receiving a benefit as a consequence of your work (such as parental benefit)), you are no longer subject to the legislation of your former State of work but have become subject to the legislation of the State of residence (in accordance with the general rule for economically inactive persons, see question 7.15). If the new competent State, i.e. the State of residence, does not provide for the taking into account of periods devoted to raising a child, then your former State of work, i.e. the previous competent State, must continue to take into account these periods under its legislation (as if the child-raising took place on its territory) for the purposes of entitlement to and calculating your pension.
Thus, in example 2, the periods Ms. Z. spent raising her child will be taken into account by State A, in case State B does not take into account child-raising periods.
Please note that this does not apply if, as a result of taking up work after the end of the child-raising period, Ms. Z becomes subject the legislation of another Member State.
In cases in which you cannot invoke the coordination regulation nor the “economic freedoms” (free movement of workers, right of establishment, free provision of services), you could indeed rely on your status of EU citizen to claim a right to equal treatment as regards social benefits falling within the scope of Union law or to challenge national residence requirements as a condition for retention of social benefits.
However, caution is needed. As the law on this point is still developing, the extent of the rights attached to the status of EU citizen is not yet clear. It is certain, however, that the social benefit rights stemming from EU citizenship are not unlimited.
See also the keywords personal scope and war benefits and advances of maintenance payments.
If you want to read more about this topic, see for example the ECJ ruling in the case María Martínez Sala v. Freistaat Bayern (C-85/96)
Legal basis: article 1(d), 11(3)(b), 13(4), 49 and 60 Regulation 883/2004
The regulation contains specific rules for persons covered by a special scheme for civil servants, in particular as regards applicable legislation (see question 7.9), aggregation of periods in respect of old-age, invalidity and survivors’ pensions and unemployment benefits. It is nevertheless important to point out that, since this amendment, periods under a special scheme for civil servants have to be taken into account by the “normal” schemes of all other Member States for the purposes of establishing entitlement to benefits.
Please note that officials of the EU – save EU contract staff, i.e. persons on temporary contracts – are not covered by the coordination regulation.
If you want to read more about this topic, see for example the ECJ ruling in the Baesen-case (C-296/09)
Example 2: Ms. Z is a pensioner residing in Belgium. During her professional career, she has worked for 20 years in Belgium and for 20 years in the Netherlands. She receives pensions from both Belgium and the Netherlands.
Only the State which pays a pension and at whose expense medical care is provided is entitled to make deductions from the pension it pays, if its legislation so provides. This is an application of the principle according to which a pensioner cannot be required, because s/he resides in the territory of a Member State, to pay compulsory insurance contributions to cover benefits payable by an institution of another Member State.
It is recalled that, as a rule, pensioners are entitled to medical care in the Member State in which they reside. The cost of the care is always borne by a Member State which pays a pension. Where you receive a pension from the State in which you reside and you are entitled to sickness benefits under that State’s legislation, the cost of the care is borne by the institution of that State, even though you additionally draw a pension under the legislation of one or more other States. If you do not draw a pension under the legislation of the State in which you reside, and in the absence of entitlement to medical care under the legislation of that State, you are nevertheless entitled to care in the State of residence, provided you would be entitled to medical care if you were resident in (one of) the State(s) under the legislation of which you draw a pension. In those cases, the cost of the care is borne by the institution of the latter State (or, if you receive pensions from two or more Member States, by the institution of the State where you have been insured for the longest time; or, if you have been insured for an equal period of time in more than one State, where you were last insured). The same applies if in the State in which you reside, the right to medical care is conditional upon residence only (for more details, please refer to question 46.10 under keyword old-age pensions).
In the case of Mr. X in example 1, this implies the following. Mr. X may receive medical care in Austria, as he would be entitled to care had he lived in Germany or Denmark. The cost of the care is at the expense of the Danish institution, to whose legislation Mr. X has been subject for the longest period of time. The Danish institution is competent to make deductions as provided for in Danish legislation.
Ms. Z in example 2 draws a pension from the State in which she resides, i.e. Belgium. Ms. Z, who satisfies the requirements for entitlement to medical care in Belgium, has a right to receive medical care there. The cost thereof is borne by the Belgian institution. That institution is also competent to make deductions in accordance with Belgian legislation.
However, the institution of State B has to make sure that the amount of contributions deducted from the pensions of State A and State B (or collected directly from the person concerned) does not exceed the amount which would be deducted if a corresponding sum of pension was paid under the legislation of State B only. Furthermore, if you can prove that you have already paid contributions in State A for (future) medical care as a pensioner during your working years there, the institution of State B must exclude that pension from its calculation.
Legal basis: article 3 Regulation 883/2004 (a contrario)
However, in respect of certain agreements, the exclusion from the regulation’s scope may be lifted by a declaration of the Member State concerned, notified to the Presidents of the European Parliament and of the Council of the EU. This is the case for agreements which serve to implement statutory social security or which have been the subject of a decision by the public authorities which makes them obligatory or extends their scope. To date only one Member State has made such declarations; France has brought the French unemployment insurance scheme and the occupational pension schemes AGIRC and ARRCO – all established by collective labour agreements – within the scope of the coordination regulation.
See also the keyword pre-retirement.
The notion of “competent institution” as used in the coordination regulation can refer to different things. Generally speaking, “competent institution” means the institution designated by the competent ministries of each of the Member States to implement the coordination regulation in respect of the various benefits. The competent institutions can take different forms (offices, agencies, funds, ministries, local authorities etc.) and vary for different branches and/or categories of persons. The details of the different competent institutions can be consulted in a public database, called EESSI Public Directory (Institutions Database), set up and managed by the European Commission, who is supplied with information by the Member States. Each institution has an identification code and an electronic address. You can find this Database on the European Commission website at the following address: http://ec.europa.eu/employment_social/social-security-directory/welcome.seam?langId=eng
See the keywords electronic exchange of social security information, information to and from citizens).
In a more specific way, the term refers to the competent institution - in general terms - of the Member State whose legislation is designated as applicable by the rules on the determination of the legislation applicable (see the keyword applicable legislation). This can be the institution with which you are insured at the time of application for benefit or the institution from which you are or would be entitled to benefits if you or a member of your family resided in the State in which the institution is situated.
Note that the competent institution - even specifically speaking - is not necessarily the institution which provides benefits to you. When you reside outside the competent Member State, for instance, medical care or long-term care benefits in kind are provided by the institution of the place of residence or stay, respectively, at the expense of the competent institution. The same holds true for sickness benefits in kind if you stay outside the State where you are insured, except in the cases referred to in the answer to question 41.3).
Whether a benefit is contributory or non-contributory is irrelevant for the purposes of it being covered by the coordination regulation. The scope of the regulation extends to contributory and non-contributory benefits. Note, however, that specific rules apply to certain non-contributory cash benefits, which are special in nature (see the keywords material scope, benefit, non-contributory benefit and special non-contributory cash benefit).
However, certain provisions of social security conventions concluded before the date of application of the coordination regulation in the State(s) concerned, may continue to apply, to the extent that they prove more advantageous to the beneficiaries or where they arise from specific historical circumstances and their effect is limited in time. The provisions concerned have to be listed in an annex to the coordination regulation (Annex II to Regulation 883/2004). This is the case, for instance, for Article 7 of the Nordic Convention on social security of 18 August 2003, dealing with the coverage of extra travel expenses in case of sickness during stay in another Nordic country increasing the cost of return travel to the country of residence. It should be stressed that, on account of the principle of non-discrimination, these provisions of social security conventions can be relied on by all persons coming within the scope of the coordination regulation, and not just by nationals of the Member States which have concluded the convention. Nevertheless, there is also an exception to this principle, namely for national provisions which cannot be extended to all EU nationals and therefore remain restricted to the persons covered by them, as is also specified in this Annex II. This concerns, in particular, provisions concerning the apportionment of insurance burdens where the relevant nationality at a specific date is decisive. Equal treatment of all EU nationals would make such provisions inapplicable.
Moreover, the Court of Justice has held that the freedom of movement of workers precludes the loss of social security advantages for workers who have made use of this freedom, loss that would result from the inapplicability, following the entry into force of the coordination regulation, of conventions operating between two or more Member States before accession to the EU and incorporated in their national law (Rönfeldt-case). This principle only applies if you exercised your right to free movement (e.g. worked abroad) before the date of entry into force of the coordination regulation. If, as regards a social security advantage, you can benefit from a right under a convention entered into between two Member States, and if that convention is more favourable to you than the coordination regulation which became applicable to you subsequently, the right you have acquired under the convention is acquired once and for all. If, on the other hand, the basis for your rights arose entirely after the entry into force of the regulation, your situation is to be assessed in the light of the provisions of the coordination regulation.
The Court of Justice has made clear that, on account of the principle of non-discrimination, bilateral social security conventions concluded between a Member State and a third country should be interpreted to the effect that the advantages enjoyed by nationals of that Member State must in principle also be granted to nationals of other Member States who are in the same situation in objective terms (Gottardo-case).
Accordingly, in the example stated above, the institution of State A is under the obligation to take into account the periods completed by Ms. Z in the third country for establishing her entitlement to a pension from State A. Refusal to do so would amount to forbidden discrimination on grounds of nationality.
It should be stressed that the application of this case law has certain limits. For one thing, in order to be able to rely on the principle of equal treatment in this context, your situation has to be governed by the social security convention concluded between a Member State and a third country; in other words, you can only enjoy an advantage arising from such a convention if a person who is a national of the Member State which is part to the convention and who is otherwise in a situation identical to yours, can obtain that advantage on the strength of the convention. For another thing, the application of this case law cannot impose any new obligations on the third country. You cannot, for instance, rely on provisions of a convention granting nationals of the Member State which is party to the convention benefits at the expense of the institution of the third country.
It is important to understand that coordination is not a goal in itself, but a means to achieve a very important objective of the Union, i.e. freedom of movement of persons. The national social security schemes are linked together, so as to ensure that people moving from one Member State to another are not, as a result, penalised in terms of their social security rights. Indeed, freedom of movement would remain an illusion if moving across borders would result in the loss of social security rights. In order to attain this goal, the coordination system employs a number of key principles: the non‐discrimination on grounds of nationality; the aggregation of periods of insurance, employment or residence; the waiving of residence rules; and the application of a single legislation in terms in respect of liability to contribute and entitlement to benefits (see notably the keywords discrimination; applicable legislation; aggregation of periods; export of benefits).
Coordination of social security thus leaves unaffected the substantive and procedural differences between the national social security systems. The coordination rules offer no guarantee that transferring your residence or your professional activities to another Member State is neutral as regards social security. Given the disparities in social security legislation, such transfer may work to your advantage or not, depending on the circumstance.
The following example may illustrate the limits of coordination. Each Member State remains competent to set the retirement age. It follows that, if you have worked successively in three Member States where statutory retirement age is fixed at 63, 65 and 67 respectively, you will, upon reaching the former age, only receive the pro-rata pension of the first Member State (see the keyword old-age pensions); two years later, the second State will start paying a pension proportionate to the length of insurance under its legislation. Only at age 67, you will receive an old-age pension for your entire career.
Another example relates to invalidity; as each Member States is free to define invalidity and determine its degree, it may happen that a person is considered to be not affected by invalidity under the legislation of one Member State where s/he worked – and hence not entitled to invalidity pensions from that State – and to have a 100% degree of invalidity in another State.