1. trESS Analytical Study 2011
Social security coverage of non-active persons
moving to another Member State
E. Eichenhofer
H. Verschueren
F. Van Overmeiren
trESS Final Conference 2011, Ghent, 08/12/2011

2. Introductory Remarks
• From trESS-CASSTM topic (2009) to highest political level (EPSCO
Council June 2011)
• Note from the Secretariat: first legal analysis
• Notes from the Member States: several concerns
• EC & Member States: need for further analysis
• trESS Analytical Study, based on Questionnaire to “find facts” in
the Member States

3. Content of the overall analysis
• Overview of the legal framework
• Mapping of residence based social security systems in the
Member States
• Fact-finding analysis (questionnaire)
• Current state of EU law
• Possible policy perspectives

4. Outcome of the fact-finding analysis
• Uncertainty about the definition of “non-active persons”
• Benefits involved: SNCB and residence based health care
• Predominant issues:
• fear for social tourism;
• increase in claims from non-active persons;
• unclear relationship between R-883/2004 and D-2004/38.
• Lack of elaborated case studies, facts or statistics

5. Current state of EU law
• Main priority question:
“First legality of residence, then coordination (= entitlement to
SNCB, health care)” or “first coordination rights, then legal
residence (using coordination rights to establish legal residence)?”
• Current texts of R-883/2004 and D-2004/38: no direct
influence THUS separate and full application of both
instruments
• EU citizenship case law: Treaty-based equal treatment right
and the “genuine link” justification

6. Current state of EU law
• R-883/2004 notion of residence
• Formally accepted: SNCB in MS of residence (balance to
avoid exportation) + equal treatment for residence based
health care in competent MS of residence (Art. 3 R-883/2004)
• Substantially close to a “genuine link” assessment: a factual
analysis of relevant individual circumstances (cf. Article 11 R-
987/2009) pointing to 1 Member State
• Anyway too much room for different interpretations of
the relationship: unsatisfactory situation

8. Possible future perspectives
 Route 1: “CLARIFICATION”
• A safeguarding clause for R-883/2004 in D-2004/38
• A definition of social assistance in D-2004/38

9. Possible future perspectives
 Route 2: “RECONCILIATION”
• A flexible waiting period in the residence concept of R-
883/2004 for the application of the special coordination
regime for SNCB’s + limited export of SNCB
• A cost compensation mechanism between the former
and the new Member State of residence for residence
based benefits granted to non-active persons

10. Possible future perspectives
 Route 3: “FOCUS ON RESIDENCE”
• Substantiating residence notion of Article 1(j) R-883/2004
• An enhanced focus on the assessment of the establishment
of residence in the Member States in order to prevent
confusion and cases of fraud and abuse
• The introduction of an “abuse of rights” clause with regard
to the residence concept in Regulation 883/2004

12. Thank you for your attention!
Questions?
Filip.VanOvermeiren@UGent.be