Employment, Social Affairs & Inclusion

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Self-employed person

Self-employed persons for regulation purposes are persons pursuing an activity as a self-employed person. The concept of “activity as a self-employed person” within the meaning of the regulation refers to any activity or equivalent situation which is regarded under the national social security legislation of the Member State in which such activity or situation exists as a self-employed activity.

It is for the Member States alone to determine who is regarded as pursuing an activity as a self-employed person. If a Member State decides to subject certain categories of economically inactive persons to a social security scheme for self-employed persons, these categories of persons are pursuing an activity as a self-employed person within the meaning of the regulation.

In Member States which operate distinct, clearly-defined schemes for self-employed persons, it is fairly easy to determine who is pursuing an activity as a self-employed person for the purposes of the regulation. Other Member States, however, have general social security schemes which cover all residents or the whole working population. In those cases the notion of self-employed activity has to be inferred from another branch of social security which operates such a distinction.

It has to be noted that the definition of “activity as a self-employed person” has become less important as the personal scope of the new regulation includes all persons subject to the social security legislation of a Member State, irrespective of whether they are economically active or not. Nevertheless, the notion of “activity as a self-employed person” remains important in some respects, notably as regards the determination of the legislation applicable and the entitlement to family benefits.

When it comes to the rules on the determination of the legislation applicable, persons receiving cash benefits because or as a consequence of their activity as a self-employed person (e.g. sickness benefits, maternity benefits, unemployment benefits) are considered to be pursuing the said activity. However, this does not apply to invalidity, old-age or survivors' pensions or to pensions in respect of accidents at work or occupational diseases or to sickness benefits in cash covering treatment for an unlimited period.
Yes, this is possible, for the same reasons as stated in the answer to the question 55.1. The concepts of “activity as an employed” and “as a self-employed person” indeed refer to activities which are regarded as such for the purposes of the social security legislation of the Member State in which those activities are pursued. For instance, in Belgium, members of the board of directors are insured under a scheme for self-employed persons. In France, however, persons carrying out the same activity are insured under a scheme for employed persons. See also question 7.6.

Sickness benefits in cash

When you reside or stay outside the competent State, you can receive sickness benefits in cash (i.e. benefits intended to replace income which is suspended because of the incapacity for work) in the Member State of residence or stay. The cash benefits are calculated in accordance with the legislation applied by the competent institution and are at its expense. They are provided by the competent institution, but that institution may agree with the institution in the State of residence or stay that the benefits be provided by the latter. Such agreement in no way affects the amount of benefits.

Where the legislation of the competent State provides that benefits are calculated on the basis of average income or an average contribution basis, the competent institution will determine such income or such basis only by reference to the income earning during the periods you completed under the legislation of the competent State. Likewise, where the amount of benefits is related to standard income, only standard income for the periods during which you were subject to the legislation of the competent State will be considered for calculation purposes.
Please refer to question 33.1.

56.3. Am I also entitled to other sickness benefits in cash than those related to incapacity of work under the regulation?

Yes, you are. Due to the rulings of the European Court of Justice also long-term care benefits in cash are coordinated as all other sickness benefits in cash. See the keyword long-term care benefits.
 

Sickness benefits in kind

See the keyword medical care.

Social assistance

The regulation does not give an express definition of social assistance. Social assistance is generally understood as referring to benefits intended to guarantee a minimum means of subsistence to persons in need. The distinction between benefits which come within the scope of the regulation, on the one hand, and social assistance benefits, on the other, is a very difficult one to make. This is due, notably, to the fact that some of the traditional criteria characterising the latter benefits are not or no longer exclusive to social assistance. These criteria relate to the non-contributory nature of benefits, i.e. tax financed; not conditional upon periods of employment; and means-tested. The fact that a benefit is non-contributory or means-tested does not necessarily preclude it from being covered by the coordination regulation.

One traditional characteristic of social assistance benefits, i.e. its discretionary nature, rules out the classification of a benefit as a social security benefit. If, on the one hand, the granting of a benefit is conditional upon an assessment of individual needs or circumstances, the benefit cannot be regarded as a social security benefit for the purposes of the regulation. If, on the other hand, the authorities responsible for providing a benefit enjoy no discretionary power to assess personal needs or situations in deciding whether or not to grant it, and their involvement is confined to merely verifying fulfilment of the objective conditions for entitlement laid down by law, the benefit is a social security benefit, provided it relates to one of the risks expressly mentioned in the regulation. At the same time, it should be added that most minimum subsistence benefits in the Member States are nowadays no longer discretionary.

Mention should also be made here of a separate category of benefits, i.e. special non-contributory cash benefits. These benefits are neither social security benefits in the traditional sense nor social assistance benefits, but have links to both these categories. Special non-contributory benefits have to be classified as social security benefits within the meaning of the regulation and therefore are within its material scope, but they are governed by specific rules if these benefits are entered in the relevant annex to the regulation (Annex X to Regulation 883/2004). See the keyword special non- contributory cash benefit.

It follows from the above that the definition of social assistance benefits for the purposes of the coordination regulation is largely negative in nature, in the sense that it only social benefits which cannot be classified as social security benefits or special non-contributory cash benefits can qualify as social assistance.

Social security risks

The coordination regulation only applies to benefits covering the “traditional” risks of social security. These essentially correspond to the contingencies listed in ILO Convention No 102. The risks expressly mentioned in the regulation are sickness; maternity and equivalent paternity, invalidity, old-age, survivorship, accidents at work and occupational diseases, death, unemployment; pre-retirement and family care.

This list is exhaustive. Benefits covering other risks are in principle not within the scope of the coordination regulation. However, the Court of Justice has classified certain benefits relating to risks which are not as such listed in the regulation, as benefits that nevertheless fall within the scope of the regulation. It has, for instance, categorised benefits covering the risk of becoming reliant on care (long-term care benefits) as sickness benefits, after an assessment of the constituent elements of these benefits (see also the keywords material scope and benefit). On the other hand, benefits connected with the general risk of poverty, such as guaranteed minimum income benefits, are outside the scope of the regulation (see the keyword social assistance).

The connection of a benefit to one of the risks expressly mentioned in the regulation is not only important for determining whether the regulation applies, but also for determining which part of the regulation applies; as the various benefits are governed by different coordination rules.

Special non-contributory cash benefits

Special non-contributory cash benefits are cash benefits which are halfway between traditional social security benefits and social assistance. They present characteristics of both categories, but belong – from a systemic point of view – to neither. They are linked to social security in that they create legally-defined rights connected to a social security benefit and relate to one of the risks covered by the coordination regulation. At the same time, they have links with social assistance, in the sense that they are non-contributory and intended to relieve a financial or personal need. Special non-contributory benefits come within the scope of the regulation, but are governed by specific rules (see questions 60.2 and 60.3).

In order for a benefit to be a special non-contributory cash benefit, it must fulfil a number of conditions:
 
  • First, it must have a special character. This character is defined by its purpose. In particular, the benefit must be intended to provide either:
    • supplementary, substitute or ancillary cover against one of the risks covered by the branches of social security expressly mentioned in the regulation (see the keywords social security risks and benefits) and it must guarantee the persons concerned a minimum subsistence income having regard to the economic and social situation in the Member State concerned (e.g. supplements to old-age pensions)
      Or
    • specific protection for disabled people, closely linked to the social environment of the said person in the Member State concerned
  • Second, it must be non-contributory, which essentially depends on the way in which the benefit is financed. In particular, the benefit must be financed from compulsory taxation intended to cover general public expenditure. The conditions for providing and calculating the benefit should not be dependent on any contribution in respect of the beneficiary. The fact that a benefit is provided to supplement a contributory benefit does not necessarily imply that it is itself contributory in nature
  • Third, it must be listed in an annex to the regulation (Annex X to Regulation 883/2004).

Each Member State has one or more entries in this annex. There are some 70 special non-contributory benefits. Examples are the Irish Jobseekers’ Allowance, the Slovenian State Pension, the Polish Social Pension and the Danish Accommodation Expenses for Pensioners.
Yes, you will lose entitlement to this benefit if you transfer your residence to another Member State. Special non-contributory cash benefits are only payable in the Member State where you reside and in accordance with its legislation. This is a major exception to the principle of export of benefits (see the relevant keyword), which is mainly justified by the fact that special non-contributory benefits are closely linked to the social and economic environment of the Member State under whose legislation they are provided.
Yes, there is, for the same reason that you cannot export the special non-contributory cash benefit to which you were entitled in your former country of residence, i.e. that payment of this kind of benefits is conditional upon the claimant residing in the territory of the State under whose legislation s/he is entitled thereto.

This implies that you have the right to receive a corresponding special non-contributory cash benefit from your new State of residence, provided there exists such a benefit and you meet the (non-discriminatory) conditions for granting laid down in that State’s legislation. The regulation provides for mechanisms to ensure that these conditions do not affect you more than they affect persons who have always been subject to the legislation of your new State of residence. These mechanisms include aggregation of periods (see the relevant keyword) and equal treatment of benefits. Accordingly, if the conditions for entitlement include the completion of periods of employment or residence in the territory of your new State of residence, the institution of that State must take into account periods of employment or residence completed in your former State of residence (or in any other Member State), as if they were completed on its territory. This means that if, for instance, the legislation of your new State of residence makes entitlement to a special non-contributory cash benefit subject to a two-year residence requirement, you would fulfil this condition as of the first day if you completed periods of residence under the legislation of any other Member State for a period of at least two years. Moreover, if the special non-contributory cash benefit which you claim is a supplement to a social security benefit, such as a minimum subsistence benefit supplementing an old-age pension, your new State of residence may not refuse such a supplement for the sole reason that you are not entitled to an old-age pension under its own legislation but only to a pension paid by your former State of residence (or by any other Member State). This is an application of the principle of equal treatment of benefits (see the keyword assimilation of facts).

As already indicated, in order to be able to claim special non-contributory benefits in the Member State to which you moved, you have to reside there. This means that the habitual centre of your interests must be situated in that State. A number of criteria must be taken into account in order to establish whether this is the case, whereby the length of your presence in the territory of the State concerned is not decisive, unlike your intention and the reasons which have led you to move (see the keyword residence). It follows from the above that the authorities of the State to which you moved could refuse to grant you a special non-contributory cash benefit if, for example, you went to that State to lend a hand with household and family tasks to a close relative living there and going through a very busy period, and you intend to return afterwards. If, on the other hand, you intend to remain in the State to which you moved and where your close relatives live, the authorities of that State cannot refuse to grant you a special non-contributory cash benefit on account of the fact that you have not yet been resident there for a certain period of time.

It is important to note that the legislation of your new State of residence may not provide for a special non-contributory benefit which is comparable to that which you received in your former home State. Even if it does, it is possible that, notwithstanding the mechanisms referred to above, you do not satisfy the objective and non-discriminatory conditions for grant laid down in the legislation of your new home State. In those cases, you will not be able to receive a corresponding benefit in your new State of residence. It is also possible that you receive a lower benefit than that which you previously received in your former State of residence. This is a consequence of the fact that the regulation does not harmonise the national social protection systems, but puts in place a coordination system (see the keywords harmonisation of social security and coordination of social security).

Stay

See the keyword residence.

Stateless person

A stateless person is a person who is not considered as a national by any State under the operation of its law. Their status is governed by the United Nations Convention relating to the Status of Stateless Persons, signed in New York on 28 September 1954.

Stateless persons are covered by the regulation on the same terms as Member State nationals, i.e. when they reside in a Member State and they are insured under the social security legislation of a Member State. Their family members and survivors are also covered. Moreover, their situation must not be confined in all respects within that Member State.

Structured electronic documents

Structured electronic documents or SEDs are the instruments through which information will be exchanged electronically between national social security institutions under the EESSI system (electronic exchange of social security information, see the relevant keyword). They replace the paper E-forms that were used for the communication between the institutions under the former regulations.

The format and the content of the SEDs and the structure of the exchanges is established by the Administrative Commission on the Coordination of Social Security Systems (see the relevant keyword), on advice of the Technical Commission attached to it. At the latest by the end of the transitional period for the EESSI, i.e. by 30 April 2014, all information needed by the institutions involved to establish your entitlement to benefits and the quantum thereof, will be exchanged via these SEDs (until that period, so-called “paper SEDs” may be used). Seen from that perspective, they are very important for your social security situation. However, to the extent that the SEDs will be exchanged exclusively between social security institutions, you will not have to deal personally with them and therefore they do not directly concern you.

The introduction of the SEDs and the replacement of the paper E-forms do not mean that there will no longer be material forms. A series of EU-wide standard forms, called portable documents (see the relevant keyword) has been developed. Such forms, issued by a competent institution, attest to a certain entitlement or affiliation and may be physically shown by the insured person to the authorities of a Member State.

See also the keyword electronic exchange of social security information.

Survivor

In order to establish who is a survivor, reference must be made to the legislation of the Member State under which benefits are provided.

The coordination rules apply to survivors of persons who come within the personal scope of the regulation (see the keywords personal scope), including survivors of third-country nationals to whom the coordination rules apply – by virtue of their own legal status – on the strength of the separate regulation extending the scope of these rules to this category of persons (see the keyword third-country nationals). It is not necessary, for these survivors to be covered by the coordination rules, that they be nationals of the EU/EEA Member States or Switzerland.
Moreover, if the deceased person was a person who has been subject to the legislation of one or more Member States, the survivor is covered by the coordination regulation, provided s/he is a Member State national (or a refugee or stateless person), even though the deceased was not covered by this regulation on account of his nationality of a third country.
Survivors used to be able to claim only derived rights, i.e. rights acquired through their status as survivor of a worker, not rights of their own which they enjoy without any relation of kinship with the worker (see the keyword derived benefit). In other words, survivors could only rely on the coordination rules in respect of benefits which were specifically intended for them, such as survivors’ benefits.

The scope of rights which survivors can claim was broadened by the European Court of Justice already under the old regulation. Since then, survivors can rely on all provisions of the coordination regulation, except those provisions which are applicable solely to workers, such as the articles dealing with unemployment benefits.

Survivors’ benefits

The coordination rules governing survivors’ pensions are identical to those governing old-age pensions. Please see the keyword old-age pensions.
 

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