General Principles of Coordination in Regulation 883-2004

GENERAL PRINCIPLES OF COORDINATION
IN REGULATION 883/2004
Yves Jorens and Filip Van Overmeiren*
Abstract
Fifty years after Regulation 1408/71, a new Coordination Regulation, 883/2004, will
shortly enter into force and become the new coordination instrument. The general
principles of the coordination of social security (equal treatment, aggregation
of periods, export of benefits and rules for the determination of the applicable
legislation) still constitute, after 5 decades, the general framework of coordination.
No fundamental changes can be reported, although these principles were adapted in
line with the modernisation and simplification exercise of the whole coordination
framework, in order to take into account several developments in national social
security legislation as well as in the case law of the European Court of Justice. New
developments in the framework of European citizenship, and the influence of the
other “constitutional” principle of the free movement of people in the EU Treaty,
play an important role and might in the future further challenge the coordination
framework. This is in particular the case with respect to the derogations to the
exportability rule, as well as with respect to the rules on the applicable legislation. The
general rule on equal treatment was strengthened through the generalisation of the
assimilation of facts. Although some small improvements have been obtained with
respect to the personal and material scope of the Regulation, a lot of burning issues
remain and already call for further attention in the future. Regulation 883/2004
might be the welcomed new start of the coordination framework, but the challenges
currently encountered raise the question whether it is not time to reflect on a new
framework, perhaps leaving aside decisions taken decades ago and re-confirmed
today by the community legislator.
* Yves Jorens, Professor of European Social Law, Faculty of Law, Ghent University, Universiteitstraat
4, Gent, BE 9000 Belgium; e-mail: Yves.Jorens@UGent.be; Filip Van Overmeiren, Researcher,
Faculty of Law, Ghent University, Universiteitstraat 4, Gent, BE 9000 Belgium; e-mail: Filip.
VanOvermeiren@UGent.be.
European Journal of Social Security, Volume 11 (2009), Nos. 1–2 47

Yves Jorens and Filip Van Overmeiren
Keywords: social security of migrant workers; general principles of coordination of

social security; equal treatment; aggregation of periods; export of benefits and rules
for the determination of the applicable legislation; administrative cooperation
1. INTRODUCTION
The new, long-awaited, Regulation 883/20041 will become applicable when the
Implementing Regulation enters into force, most likely in the year 2010. The Regulation
introduces a new set of rules to govern the coordination – rather than harmonisation
– of the social security legislation of the Member States, which should modernise and
simplify the current provisions of Regulations 1408/712 and 574/72.3 These rules4 ‘fall
within the framework of the free movement of persons and should contribute towards
improving their standard of living and conditions of employment’5 and will replace
the rules of the current Regulation 1408/71. In addition to ‘the rules’ – i.e. all the
provisions in the Regulation coordinating horizontal matters, applicable legislation,
the special provisions relating to various social security benefits, and administrative
and financial provisions – this regulation also contains a handful of ‘general
principles’ that are crucial to social security coordination.
Although commentators’ views sometimes vary on what these coordination
principles are exactly, a common denominator can be found in: equal treatment,
aggregation of periods, export of benefits and the applicable legislation. Sometimes
a fift h general principle is added, i.e. good cooperation and administration. In this
article, the personal and material scope are included in this list. If Regulation 1408/71
is regarded as a central organ of the free movement of persons in the EU, these
principles should be considered as arteries, because they play an important role as
the basis for the whole system of coordination of social security. That these principles
1 Regulation 883/2004 of 29 April 2004 on the coordination of social security systems, OJ L 166/1 of
30 April 2004.
2 Regulation 1408/71 of 14 June 1971 on the application of social security schemes to employed
persons, to self-employed persons and to members of their families moving within the Community
(Consolidated version), OJ L 28/1 of 30 January 1997.
3 Regulation 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC)
1408/71 on the application of social security schemes to employed persons, to self-employed persons
and to their families moving within the Community (Consolidated version), OJ L 28/1 of 30 January
1997.
4 The European Commission, DG Employment, Social Affairs and Equal Opportunities have set up a
network of independent experts (coordinated by Ghent University Belgium, Yves Jorens) to inform
them about the application and implementation of Regulations 1408/71 and 574/72 in the Member
States (the so-called trESS network: Training and Reporting on European Social Security law: www.
tress-network.org.). On the website a lot of information can be found on these Regulations as well as,
for instance, a table of concordance between the provisions of Regulation 1408/71 and 883/2004.
5 Recital 1 of the Preamble of Regulation 883/2004 of 29 April 2004, OJ L 166/1 of 30 April 2004.
48 Intersentia
General Principles of Coordination in Regulation 883/2004
are key to coordination is clearly shown by the fact that they always appear at every
stage of debate relating to the coordination of social security. Firstly, they were the
basis for the first talks on the reform of the regulation. Secondly, they reappeared in
the parameters for reform, the ‘new way forward’ presented during the 2001 Belgian
Presidency. Thirdly, as this article will conclude, they have remained practically
unchanged in the new regulation. Finally, they are in fact crucial for the level of
coordination of social security benefits. Indeed, compared to some fully coordinated
benefits, other policy areas are subject to a lower level of coordination due to the
absence of such a coordination principle. Examples of this are the derogations to the
export of benefits (unemployment benefits, special non-contributory benefits) and the
aggregation of periods (pre-retirement benefits).
In the following sections, the provisions of the new Regulation 883/2004 are
analysed from the perspective of these coordination principles.
2. A STRONGER PRINCIPLE OF GOOD ADMINISTRATION
Alongside the other main and well known principles relating to the coordination
of social security, the new regulation has brought one existing principle to the
forefront. How innovative this principle is, is debateable. It can be regarded as the
confirmation, and first clear codification, of a set of indispensable rules for the good
functioning of the coordination system. Already long acknowledged by those dealing
with the coordination of social security as of paramount importance for the smooth
implementation of the rules,6 good administration and cooperation has clearly
been vested with a higher status in the new coordination system. Such cooperation
and communication between the competent institutions is in effect the fundament
and conditio sine qua non for the other principles of coordination, the latter being
impossible to operate without the former. The practical application of the principles of
equal treatment, the aggregation of periods, the export of benefits or the determination
of the applicable legislation would not be achievable without the intervention of the
relevant national administrations of the Member States. One could even claim that
the effort to formulate the most efficient way of administrating this complex set of
rules might be of greater importance than changing the legal content of the main
regulation.
The principle of good administration and cooperation is already included in the
current system of Regulation 1408/71. Articles 84 and 84(a) on ‘cooperation between
competent authorities’ and on ‘relations between the institutions and the persons
covered by this regulation’ already comprise rules to make sure that the administrative
6 Perrin, G., La sécurité sociale, son histoire a travers les texts, tome V, Histoire du droit international
de la sécurité sociale, Paris, Association pour l’étude de l’Histoire de la Sécurité Sociale, 1993, 362–
363. Perrin calls it ‘a general principle intrinsically related to every system’.

side of coordination is dealt with as efficiently as possible. These Articles provide for the
communication of relevant information between the authorities, good administrative
assistance, direct communication between the authorities and with insured persons,
the prohibition of the refusal of claims or documents based on language, the mutual
information duty between insured persons and the competent authorities, and the
obligation for the latter to provide certain information ‘within a reasonable period’.
In practice however, these rules have never worked out as the legislator had intended
when draft ing the provisions. The E-form information exchange, although extremely
valuable in general, often malfunctions and the main reoccurring complaints in this
field relate to wrongly or ambiguously completed, or incomplete, forms, as well as to
the problem of delays in the receipt of information from competent authorities from
other Member States. The number of E-forms and the complexity of their exchange
system supports this statement. Incorrectly completed E-forms, missing data, delays in
sending documents, the use of national forms annexed to E-forms, even on occasions
non-use of E-forms, can all inhibit and delay effective processing of a claim. This is
often the source of a growing irritation and frustration among national institutions.7
It is obvious that these problems, highly practical and not legal-theoretical as they
may be, can have a grave impact on the enforcement of the rights of the beneficiaries
of social security benefits.
However, the provisions to really reinforce good administration are not to be
found in Regulation 883/2004. Article 76 on ‘good cooperation’ is more or less a blend
of the articles from 1408/71 mentioned above, from which certain provisions on
personal data protection were extracted and placed in a separate Article. All the duties
in the new regulation relating to good communication between the institutions, and
their obligation to act within a reasonable timeframe, were already incorporated in
the current regulation. Instead, it is the newly proposed Implementing Regulation
that provides the new perspective with regard to administrative cooperation that is
wished for.8 Of course, the new Implementing Regulation in itself and as a whole
is an instrument for simplifying procedures and for reducing the time needed for
institutions in the various branches of social security to respond to and process
cross-border cases. But this ‘executive instrument’ develops the principle of closer
cooperation between the various stakeholders that is referred to in Regulation
883/2004, and was significantly enriched by several innovations drawn from the case
law of the European Court of Justice and from other lessons from the past. Its Articles
2 and 3 contain the scope and rules for exchanges between institutions (relating to
data sharing, resubmission to the designated institution and modes of data transfer)
7 See in that respect Jorens, Y. and Hadju, J., trESS European Report on the Application and
Implementation of the European Regulations 1408/71 and 574/72 in the Member States of the
European Union, Gent, Brussels, 2008, 8 (published on http://www.tress-network.org).
8 COM (2006) 16 fi nal of 31th of January 2006. See for the latest version of this text: Common Position
No 3/2009 of 20 November 2008, OJ C 38/1 of 17 February 2009.
50 Intersentia
on the one hand and between the beneficiaries and the institutions (information
sharing, data access, remedies and procedures, etc) on the other. These general rules
on the inter-institutional and customer relationships for competent institutions were
also supplemented by new rules on the provisional application of legislation, the
provisional payment of benefits and on the obligation to provisionally award benefits.9
Each of these rules clearly has its basis in the principle of good administration and
is obviously intended to reduce the impact of administrative complications on the
enforcement of the rights of the beneficiaries. In the financial provisions, in relation to
settlements between the Member States, strict deadlines have been introduced for the
introduction of claims, the resolution of disputes and the payment of reimbursements
between institutions. But also throughout the provisions for the specific regimes to
coordinate the different social security benefits, an important emphasis is put on
better information gathering and distribution.
Those provisions turn, of course, somewhat pale in the light of what could be called
the ‘magnum opus’ of the administrative simplification project resulting from the entry
into force of Regulation 883/2004: the electronic exchange of data, as built in by Article
78 of Regulation 883/2004. This Article states that ‘Member States shall progressively
use new technologies for the exchange, access and processing of the data required
to apply this Regulation and the Implementing Regulation’. Electronic exchange of
data between institutions has been deemed essential to speeding up administration
and avoiding the practical problems mentioned above, as well as to facilitating the
transfer of the information needed for coordinating and in particular ascertaining
and calculating the rights of insured persons. To put it simply, this means that the
E-forms for the exchange of information between the competent authorities will
have to make room for electronic data processing. In this field, at the time of writing,
intensive preparatory works are ongoing, with a central role for the Administrative
Commission and the Technical Commission. To get a clear picture of the needs, the
data to be exchanged, the institutions involved, etc, different ad hoc Groups were
established and a lot of effort has been and shall be put in to the preparation of the
national and European architectures, which have to ensure that the information
exchange becomes operational.10 Electronic exchange will become the standard
way of processing information in the field of social security coordination, which
means that the portable paper forms must be replaced by an electronic alternative,
all insured persons and all involved institutions have to be electronically identifiable
and a flexible, integrated web forms service has to be created. As it stands now, this
should probably become reality from the first of March 2010.11 The end result should
9 See Articles 6 and 7 of the Proposal for Implementing Regulation (COM (2006) 16 fi nal).
10 The so-called EESSI (Electronic Exchange of Social Security Information) project.
11 In accordance with Article 95 of the Implementing Regulation, Member States may benefit from a
transitional period for exchanging data by electronic means up to a maximum of 24 months. Thus

be a quicker and more efficient exchange system, with more accurate data and fewer
transposing errors. It needs not to be explained that a lot of work is still ahead for
the competent institutions. However, one important caveat should be remembered.
Well-functioning international coordination depends on well organised and effective
national administrations. Studies made in the framework of the trESS-project show
very clearly that this is a burning issue and that more enhanced cooperation is also
required on a local level. This is in particular the case as the further administrative
decentralisation that is taking place in some Member States may introduce additional
problems, arising from a lack of knowledge of the Regulations at local level combined
with lack of clarity about roles and responsibilities.
3. THE SCOPE OF THE NEW REGULATION
The personal scope of the regulation has changed fundamentally throughout its years
of existence and was always highly debated. The range of individuals to which it applies
has undergone many changes since the system’s inception. The growing influence
of European citizenship since its introduction in the Maastricht Treaty widened
the personal scope even further. The material scope, the social security categories
which it covers, which copies the typology of traditional social security risks from
ILO Convention No. 102 of 1952, has remained unchanged though. The increasing
pressure of the case law of the Court of Justice in several fields and the dynamism of
national social security legislative changes led to high hopes that the material scope of
the regulation would be substantially altered. However, the final changes in the new
regulation relating to the social security branches to which it applies fell short of these
expectations. The changes to the material scope have not addressed all the issues with
the previous regulation, while the increase in the personal scope should also not be
overestimated.
3.1. PERSONAL SCOPE
The scope ratione personae of Regulation 1408/71 has constantly evolved to cover ever
more insured persons. It began as an instrument to remove social security-related
barriers to the free movement of workers, on the basis of Article 42 EC, and was
initially – just like its predecessor Regulation 3/5812 – directed at workers (as well
as stateless persons and refugees) and their family members and survivors. Through
several modifying regulations, the personal scope was extended to self-employed
March 2012 can be noted down as the date when the electronic data exchange should function at
full speed in every Member State.
12 Regulation No. 3 concerning the social security of travelling migrants, OJ 30/561 of 16 December
1958.
52 Intersentia
persons13, civil servants14 and students.15 This scope has always, even before the
introduction of the EU citizenship provisions in the Treaty, covered economically
non-active persons such as pensioners, disabled persons or the family members of
workers. These categories can also be regarded respectively as ex-workers, workers-to-
be and persons deriving rights from an economic activity of a family member, which
means that an economic link is always present. Other conditions relating to when the
regulation was applicable resulted in significant exclusions. As the regulation could
only be applied to nationals of Member States (or stateless persons, refugees and family
members) in situations that included a cross-border element, third country nationals
in identical cross-border situations were excluded. This changed with the adoption
of Regulation 859/200316, which made Regulation 1408/71 applicable to persons not
having the nationality of a Member State who are not covered by the regulation solely
on the ground of their nationality and who are ‘legally resident in the territory of a
Member State and are in a situation which is not confined in all respects within a
single Member State’.
The new Regulation 883/2004 again changes the personal scope somewhat.
‘Somewhat’ should be stressed, as the impact of this particular modification of
the coordination system does not alter the coordination system dramatically. All
references to gainful activities have been removed from Article 2 concerning the
personal scope. The regulation is now oriented towards ‘all insured European citizens
and those who have been insured’. Naturally, the deletion of references to economic
activity and the new orientation towards ‘nationals of the Member States who are
or have been subject to the legislation of one or more Member States’ is loaded with
symbolism. It is the explicit expression of the coordination system’s concurrence
with developments in the field of European citizenship, promoting the unhindered
free movement of any EU citizen, regardless of engagement in an economic activity.
Indeed, the change represents a break from the regulation’s historical economic
grounds, in favour of the inclusion of non-active persons. But the actual practical
effect of the new personal scope of the system should be put into perspective. It needs
to be said that Regulation 1408/71 has a broadly formulated personal scope and that
a large proportion of EU citizens are already now covered by the regulation due to
their status as a worker, self-employed person, civil servant, student, stateless person,
refugee, survivor or family member.17 In fact, it is difficult for Member State nationals
13 Regulation 1390/81 of 12 May 1981, OJ L 143 of 29 May 1981.

14 Regulation 1606/98 of 29 June 1998, extending 1408/71 to special schemes for civil servants, OJ L
209 of 25 July 1998.
15 Regulation 307/1999 of 8 February 1999, OJ L 38 of 12 February 1999.
16 Regulation 859/2003 of 14 May 2003, OJ L 38/1 of 12 February 1999.
17 The scope was also very broadly interpreted by the European Court of Justice. For example, a
missionary who used gifts to provide his living was qualified as having a self-employed activity by
the ECJ. Cf. Case C-300/84 Van Roosmalen [1986] ECR-3097.

and legally resident third country nationals in a cross-border situation in the EU not
to be covered by the regulation. This is certainly the case for social protection systems
based on the Bismarckian ‘employment oriented’ personal scope of application that
covers all ‘economically’ active people. Even in situations where people could not
be considered economically active, such as voluntarily insured people, they were,
according to Article 1a of Regulation 1408/71, in most cases classed as employed
persons. For ‘residence-based’ systems, like in Scandinavia, there might be some
modification. Such States fear that this extension of the personal scope of application
of the regulation will lead to further “social security tourism”, as the simple fact of
residing is now sufficient for the acquisition of insurance periods even without any
economic activity.18 Under Regulation 1408/71 this was less of a problem, as a Member
State was only the competent State for pensions to which the regulation applied if the
person concerned was subject to its provisions on the basis of a professional activity.
In general however, Member States are of the opinion that Regulation 883/2004 might
not lead to more rights than under Regulation 1408/71.
It is worth noting that the rights of non-active persons depend in particular also on
the right of residence. If one is allowed to live within the territory of a Member State19,
one may not be discriminated against. Non-active persons may therefore not as such
be excluded from the regulations. In order to tackle some of the problems associated
with this fear, Denmark has, for instance, adopted the provision that a social pension
can be exported only if the person concerned has been living three years in Denmark.
An exception is made if the person performs economic activities in a Member State.
Thus, though certainly to be regarded as a step forward in terms of legal certainty and
transparency, the personal scope of the coordination system will not substantially
change under the new regulation. The change will however contribute to the reform’s
goal of simplification, as the removal of references to workers and self-employed
persons reduces definitional problems related to these terms. These terms have indeed
proven to be difficult to interpret, as their national meanings – sometimes influenced
by EU law20 – varied.
Regarding the application of the new ratione personae in the regulation, no
definition of ‘worker’ or ‘self-employed’ is needed anymore, which avoids complicated
annexes to the regulation with specifications of these definitions.21 It should however
18 Spiegel, B., ‘Die neue europäische Sozialrechtskoordinierung’, in Die Reform des Europäischen
koordinierenden Sozialrechts, DRV Schriften, 71, 2007, 59.
19 In application of Directive 2004/38 of 29 April 2004 on the right of citizens of the Union and their
family members to move and reside freely within the territory of the Member States amending
Regulation (EEC) No 1612/68 and repealing Directives 64/221/EEC, 68/360/EEC, 72/194/EEC,
73/148/EEC, 75/34/EEC, 75/35/EEC, 90/364/EEC, 90/365/EEC and 93/96/EEC, OJ L 158/77 of
30 April 2004.
20 See Case C-300/84 Van Roosmalen [1986] ECR-3097.
21 See the very detailed and mind-puzzling provisions of Annex I of Regulation 1408/71 ‘Persons
covered by the Regulation’.
54 Intersentia
be noted that this simplification is only a Pyrrhus-victory, as a definition of employed

and self-employed is still needed for the implementation of the coordination rules, for
instance for the rules on applicable legislation, which differ according to whether the
individual is employed, self-employed or economically non-active22 (For the first two,
the legislation of the State where they perform their activities is applicable, but there
are special rules in case a person is simultaneously employed and self-employed. For
the latter, the legislation of the country of residence applies).
While the personal scope of the new regulation certainly strengthens the concept
of EU citizenship and promotes social inclusion by explicitly integrating all non-
active EU citizens, the nationality requirement was maintained and consequently
also the exclusion of third country nationals legally residing in a Member State. The
initial proposal for a new coordination regulation by the European Commission did
not refer to nationality at all; the condition to be a Member State national was re-
entered in the text by a European Parliament amendment23 and accepted because
Regulation 859/2003 was in the pipeline at that time. There was indeed discussion on
the legal basis of this extension and Article 42 of the EC Treaty was considered by the
European Court of Justice not to be an appropriate legal ground for extension to third-
country nationals.24 However, Regulation 859/2003 is not applicable to Switzerland
and the EEA-countries. This means that, for third country nationals’ entry into the
coordination system of Regulation 883/2004, the same approach has to be applied as
the one used under Regulation 1408/71, that is, a separate regulation to extend the
other’s coverage. The European Commission has already proposed a new regulation
(COM(2007)43925) to achieve this and to replace Regulation 859/2003. The coverage
of third country nationals is thus being taken care of, but the fact remains that they are
22 Another issue that might lead to problems in the future is the different legal basis between, on the
one hand, employed and self-employed persons and, on the other hand, economically non-active
persons. From the moment the Treaty of Lisbon enters into force, an improvement with respect
to social security coordination will be that for the coordination of social security for employed
and self-employed persons (Article 48 of the Treaty), no unanimity will be required anymore, but
only a qualified majority (notwithstanding the fact that an alarm procedure is foreseen according
to which, in case a Commission proposal would affect fundamental aspects of the social security
system of a Member State or would affect the fi nancial balance of that system, the Member State
may refer the case to the European Council). For economically non-active persons, a second legal
basis remains necessary (Article 308 of the Treaty, after adoption of the Lisbon Treaty: Article 352).
For economically non-active persons, unanimity will therefore remain the rule. Modifications
to the future framework of the Regulation might therefore still be confronted with the necessary
difficulties related to the rule of unanimity and therefore the improvement expected after the entry
into force of the Lisbon Treaty must be put into perspective.
23 European Parliament, Report on the proposal for a European Parliament and Council regulation on
coordination of social security systems, 17 June 2003, A5–0226/2003 FINAL.
24 Cases C-95/99 to 98/99, and 180/99 [2007] ECR-7413. Legal ground is Article 63 § 4.
25 Proposal for a Council Regulation extending the provisions of Regulation (EC) No 883/2004 and
Regulation (EC) to nationals of third countries who are not already covered by these provisions
solely on the ground of their nationality, Brussels, 23 July 2007, COM(2007) 439 fi nal.

still not included in the text of the main coordination regulation. This is deplorable,
not only from the viewpoint of legal certainty and clarity, but also, in principle, in the
light of the 1999 Tampere targets of the highest possible integration of third country
nationals legally resident on EU territory.
3.2. MATERIAL SCOPE: A QUASI STATUS QUO
The EU social security coordination mechanism has, in comparison to the very dynamic
nature of social security legislation an sich, been very static in relation to the social
security branches that it covers. The current regulation still covers only the traditional
set of social security benefits mentioned in ILO Convention No. 102: sickness and
maternity benefits, invalidity benefits, old-age benefits, survivor’s benefits, benefits in
respect of accidents at work and occupational diseases, death grants, unemployment
benefits and family benefits. All general and special social security schemes providing
these benefits, whether they are contributory or non-contributory, are coordinated.
Medical and social assistance as well as war victim benefits are excluded. Special non-
contributory benefits (SNCB), falling between the stools of social security and social
assistance, form a special category of benefits. They fall under the material scope of
the regulation, but the coordination system is not applied in full to these benefits as
they are not exportable. In order to be categorised as an SNCB, a benefit should be
special (a supplementary, substitute or ancillary cover against the risks covered by
the branches of social security or specific protection for disabled persons), financed
from compulsory taxation and listed in Annex IIa of Regulation 1408/71. Their
categorisation is known as one of the never ending sagas in the field of coordination,
in which a recent battle was won by the European Commission.26 But the same can be
said about the distinction between social security (‘benefits targeting one of the risks
mentioned in the regulation to which a legally enforceable right exists’27) and social
assistance in general, as the gap between the two has become very narrow. See, for a
further discussion, the contributions by Verschueren in this issue.
Until now, thanks to a broad interpretation of some of these concepts, the Court
of Justice has been in a position to qualify many of these benefits as falling within the
field of application of the Regulation.28 Due to the expansion of the content of ‘social
security’ it is possible that a whole range of benefits and services belonging to the
26 Case C-299/05 Commission vs. EP and Council [2007] ECR-8695.

27 Case C-1/72 Frilli [1972] ECR-457 and Case C-249/83 Hoeckx [1985] ECR-973.
28 For this, there was a need to categorise them under one of the enumerated risks under article 4. In
that respect the Court declared that social security benefits must be regarded, irrespective of the
characteristics peculiar to different national legal systems, as being of the same kind when their
purpose and object as well as the basis on which they are calculated and the conditions for granting
them are identical (see recently e.g. case C-406/04 De Cuyper [2006] ECR-6947 and case C-228/07
Petersen [2008], not yet published).
56 Intersentia
broad concept of social welfare will increasingly be brought within the remit of the
Regulations.
As has already been mentioned, social security legislation is a dynamic branch of
national law and is constantly in development and evolution. Social security legislation
is the typical example of legislation that has to be adapted to changes in society, such
as technological innovation, demographic changes, financial crises, labour market
developments and consumers’ interests. All kinds of societal developments are
reflected in adaptations to social security schemes. This has certainly been the case in
the last ten years as regards demographic changes, where national systems have put
a lot of effort into guaranteeing the financial balance of the system but also into the
development of new systems for new needs. Long term care insurance i.e. cover for
non-medical care in daily life, is one of the most known examples. Some Member States
also created special schemes with benefits in between unemployment benefits and old-
age benefits, also known as pre-retirement schemes. Another noteworthy evolution,
under the influence of gender equality, is that maternity benefits were matched by
equivalent benefits for fathers of newborns. At the same time, European law, and more
specifically internal market law, has had a considerable effect on the social security
schemes of the Member States in the latest decade. Since 199829, a case-by-case
development has begun in relation to the influence of the free movement of goods and
services in the field of health care provision, an important branch of national social
security schemes. Unfortunately, these national and European developments are not
immediately incorporated into a quite fi xed and rigid system such as that of European
social security coordination. That is why the modernisation and simplification
exercise during the drafting of the new regulation provided excellent momentum for
amendment. This momentum was not however fully benefited from, as the alteration
of the material scope of the regulation is rather minimal.
The matters covered under Regulation 883/2004 are a mere copy of what is in the
current regulation, albeit slightly updated with paternity benefits and pre-retirement
benefits. Despite the Commission’s suggestion in the initial proposal to work with
an open material scope (‘This Regulation shall apply to all social security legislations
concerning the following in particular: […]’30) and the support for it in Parliament, it
was rejected in the Council. Regulation 883/2004 still has a closed list of benefits in its
Article 3, ‘for reasons of legal safety’.31 This implies that decisions on the assimilation
of new national benefits into the coverage of the Regulation will still be at the table of
29 Starting with the famous cases on health care: case C-120/95 Decker [1998] ECR-1831 and case
C-1158/96 Kohll [1998] ECR-1931.
30 Proposal for a Council Regulation (EC) on coordination of social security systems, Brussels, 1998,
COM(1998) 779 fi nal.
31 Communication from the Commission to the European Parliament concerning the common
position of the Council on the adoption of a regulation of the European Parliament and the Council
on the coordination of social security systems, Brussels, 27 January 2004, COM(2004) 44 fi nal.

the European Court of Justice. This is important as different rules apply to different
risks.
Progress was however made, as the new regulation covers paternity benefits. This
insertion was proposed in the European Parliament32 to adapt the regulation to the
developments of gender parity within the Union and to confirm their assimilation
with maternity benefits33, which are already included in the scope. It is clear, however,
that paternity benefits have to be interpreted in a narrow way, as they are for maternity
benefits. This means that they are only paid during the first months after the child was
born, primarily to support the mother rather than the education of the child over a
longer period.
The scope of the regulation was also extended to cover statutory pre-retirement
benefits, defined as ‘all cash benefits, other than an unemployment benefit or an early
old-age benefit, provided from a specified age to workers who have reduced, ceased or
suspended their remunerative activities until the age at which they qualify for an old-
age pension or an early retirement pension, the receipt of which is not conditional upon
the person concerned being available to the employment services of the competent
State’. The Court had so far refused to link them to the coordination system34, so their
inclusion in the new regulation introduces the principle of applicable legislation to
these benefits and provides persons under such schemes a guarantee that they can
reside in any Member State of the EU while still receiving their benefits, but also
that they are covered for health care and will receive family benefits there. However,
since pre-retirement schemes only exist in a very small number of Member States,
regulation 883/2004 excludes the application of the rules on aggregation of periods for
the acquisition of entitlement to pre-retirement benefits. They are not, as such, ‘fully
coordinated’. In addition, there is a second limitation – only legal systems are covered
by the Regulation, and in a lot of countries pre-retirement benefits are arranged
through collective labour agreements.35 The increasing number of non-statutory
benefits, in particular, found in contractual collective bargaining arrangements, could
lead to increasing problems with coverage. Finally, one could consider this ‘update’ as
anachronistic or even ironical in a era in which national governments are putting in
great effort to reduce this type of – statutory or non-statutory – scheme in order to
keep people as long as possible on the labour market.
Advances of maintenance payments were explicitly excluded from the coordination
system, setting aside the legal consequences of the Offermans36 and Humer 37 cases, in
33 Recital 19 of the Preamble of Regulation 883/2004.
34 Case C-475/93 Thévenon [1995] ECR-3813.
35 Article 1(l) 883/2004.
36 Case C-85/99 Offermans [2001] ECR-2261.
37 Case C-255/99 Humer [2002] ECR-1205.
58 Intersentia
which the Court decided unambiguously that these benefits are family benefits within
the meaning of Regulation 1408/71 and thus to be coordinated. Through this case
law the competent State for the person liable to pay advance payments also has to pay
these benefits for children living in another Member State. It must be remarked that
the legislator, by excluding such payments from the new regulation, did not prevent
all influence from EU law. One may assume that the emerging free movement-based
welfare entitlements of European citizens, and more specifically the application of
Articles 18 and 12 EC, could counter this exclusion from the scope of the regulation.
These rights suggest that the right to equal treatment could be successfully enforced by
a migrant European citizen, solely based on his status as a European citizen and on his
lawful residence in another Member State, but also that the non-exportability of these
benefits could be successfully challenged if no satisfying objective justification could
be given for this restriction of his right to move and reside throughout the EU. Prima
facie, Member States do not seem to be in a position to provide such a justification.
3.3. MATERIAL SCOPE: OMISSIONS
One can, of course, argue that a little progress is always better than standing still, but
it is difficult to get around the fact that major issues have been left to one side when it
comes to the material scope of the regulation. Two important topics in this respect,
both related to the field of sickness benefits, are the impact of the free movement of
services in the health care sector and the coordination of long term care benefits.
With respect to the developments concerning the relationship between the free
movement of services and health care, there was no need for an extension of the material
scope of the regulation, but rather for a new coordination mechanism covering benefits
already included within the scope of the current regulation. The bulk of case law on
the national authorisation procedures with regard to cross-border health care38 was so
closely linked to the coordination of sickness benefits that an integration of it into the
text of the regulation was to be expected. The ECJ’s qualification of prior authorisation
for planned outpatient treatment abroad as a quasi-unjustifiable restriction of the free
movement of health services, for instance, did not sit well with the preservation of
such an authorisation condition in the regulation. Although the Court explicitly held
that there was no hierarchical legal problem between the regulation and Article 49
EC on the free movement of services39, this development de facto resulted in the co-
existence of two separate ‘coordination methods’, one based on the regulation and
one on the EC Treaty, which were difficult to reconcile. If only for reasons of legal
certainty and transparency, a one-instrument solution in Regulation 883/2004 would
38 Also often referred to as the Kohll & Decker case law, named after the initial cases in this area in
1998. Case C-158/96 Kohll [1998] ECR-1931 and case C-120/95 Decker [1998] ECR-1831.
39 Case C-56/01 Inizan [2003] ECR-2403.

have been meritorious. Unfortunately, the two procedures for cross-border health care
remained separated and their disunion will probably be codified, as the Commission
has presented a proposal for a Patient Mobility Directive40, containing the rules for
cross-border health care as derived from the EC Treaty. This proposal holds that ‘the
Member State of affi liation shall not make the reimbursement of the costs of non-
hospital care provided in another Member State subject to prior authorisation […]’,
while regulation 883/2004 still holds that ‘an insured person who is authorised by the
competent institution to go to another Member State with the purpose of receiving the
treatment appropriate to his condition shall receive the benefits in kind provided, on
behalf of the competent institution, by the institution of the place of stay, […]’. It also
still provides that if ‘the conditions under which an authorisation … under Regulation
1408/71 must be granted [are met] …, the Regulation will apply … [whilst] in all other
circumstances … the Directive [will] apply […]’ A literal interpretation of the proposal
for the directive seems to imply that it would always have to be applied in cases where
no obligation for authorisation to be treated abroad is foreseen under the Regulation.41
Although the Court gave its fiat for the co-existence of these inconsistent rules, one
cannot deny that better solutions are thinkable.
Fortunately, one “side-aspect” of the patient mobility case law has already worked
its way through the coordination system, where the rules on the obligation to give
authorisation, and more specifically the notion of ‘treatment within a reasonable time’,
were fi lled in from a medical point of view instead of an administrative point of view,
as can be seen in several Court cases.42 Regulation 883/2004 explicitly changes this in
its provision on planned treatment. Other aspects are incorporated in the relatively
soon to be adopted new Implementing Regulation, such as the case law on additional
40 Proposal for a Directive of the European Parliament and of the Council on the application of
patients’ rights in cross-border healthcare, Brussels, 2 July 2008, COM(2008) 414 fi nal.
41 In particular for benefits in kind, the application of the Regulation has as advantage that in many
circumstances the patient must not pay the medical treatment received, as the reimbursement of
costs takes place between the social security institutions. The fact remains however that for an
insured person the advantages and disadvantages of the different ways of cross-border medical
treatment are not always known, and are difficult to predict and evaluate in advance.
42 It is with respect to the circumstances in which prior authorisation may be asked (for hospital care)
and cannot be refused (due to the resulting undue delay, etc.) that both procedures are similar,
as well as with respect to the procedural guarantees which authorisation schemes must offer
(Case C-56/01 Inizan [2003] ECR-2403 and case C-372/04 Watts [2006] ECR-4325, 60). There is
no overriding reason which seriously justifies different interpretations depending on whether the
context is Article 22 of Regulation 1408/71 or Article 49 EC, since in both cases the question is
whether the hospital treatment required by the patient’s medical condition can be provided on the
territory of his Member State of residence within an acceptable time so as to ensure its usefulness
and efficacy.
60 Intersentia
reimbursement from the competent Member State43, the reimbursement of costs of

travel and stay44 and the case law on referrals by the Member State of stay.45
Whereas responding to questions concerning cross-border health care in
the framework of the new regulation did not exactly require an extension of the
regulation’s material scope, such an extension would be relevant to long term care,
often labelled as ‘the 5th new social security risk’. As already mentioned, many EU
Member States have designed very diverse specific benefits for people in need of long-
term care. These national schemes have different names, organisations, coverage and
conditions for entitlement, but in the end they all serve the same interest. They intend
to provide (predominantly) non-medical care to persons who are in need of it to
perform daily life tasks like cooking, cleaning, washing, as so on. The main problem
as regards the coordination system of 1408/71 is that these kinds of benefits are not
as such incorporated into the material scope of the regulation, but that the Court was
nonetheless confronted with them around the turn of the century in the Molenaar46
and Jauch47 cases. As long-term care benefits were not coordinated by Regulation
1408/71, the Court found a solution by squeezing them into the existing coordination
system.48 Long-term care benefits were from then on to be treated as sickness benefits,
in cash or in kind. Regulation 1408/71 did not provide another solution and one
must admit that, although long-term care could also be linked to old-age benefits,
invalidity benefits or family benefits, the sickness chapter was the most fit for the
job. As a result, long-term care benefits were to be coordinated in an identical way
to sickness benefits. That long-term care benefits must be coordinated in a uniform
way for all Member States according to the sickness chapter, leads to the conclusion
that for some of the Member States this implies the payment of benefits in kind by the
social security institutions of the place of residence or state of stay on behalf of the
competent state, while for others this implies the export of long-term care benefits.
This leads to various problems.
There are several issues49 arising in the coordination of long-term care benefits.
Probably the best known, as tackled in Article 34 of Regulation 883/200450 – the
43 Case C-368/98 Vanbraekel [2001] ECR-5363.

44 Case C-466/04 Acereda Herrera [2006] ECR-5341.
45 Case C-145/03 Keller [2005] ECR-2529.
46 Case C-160/96 Molenaar [1998] ECR-843.
47 Case C-215/99 Jauch [2001] ECR-1901.
48 A recent example concerning British long-term care took place in Case C-299/05 Commission vs. EP
and Council [2007] ECR-8695.
49 C.f. Spiegel, B., Presentation on the coordination of long-term care benefits, trESS seminar
Finland 2008, Helsinki, available at http://www.tress-network.org/TRESSAJAX/SEMINARS/
SEMINARPRESENTATIONS/2008/FI_2008_2.pdf.
50 The amount that has to be reimbursed by the competent Member State can be deducted from the
exported benefit in cash. Benefits in cash include combi-benefits (the solution in the Implementing
Regulation).

only article of the new regulation referring to long-term care – is the overlapping
of benefits in kind in the Member State of residence and exported benefits in cash
by the competent Member State. This kind of overcompensation for the beneficiary
and overburdening of the competent Member State, paying out cash benefits and
reimbursing the benefits in kind of the Member State of residence, logically needs to
be avoided.
The opposite situation is also possible, where the beneficiary is resident in a State
which only provides benefits in cash and the competent State only provides benefits
in kind. In that scenario, the person will receive nothing at all.51 There is also the
threat of different administrative and institutional problems. For the examination
and control of recipients in another Member State for the entitlement to benefits, the
existing procedures are fit for medical examinations for incapacity to work, but not for
long-term care.52 And what should be done if two different institutions are competent
for sickness benefits and for long-term care benefits? This can be the case both in
the Member State of residence (whom to send an E121 to?) and in the competent
Member State (who has to reimburse?). Other problems relate to the fact that some
Member States have ‘combined benefits’, comprising benefits in cash and in kind. If
this is the case in the competent Member State (in which case the benefits in kind
are not exported) or in the Member State of residence (where benefits in cash are not
reimbursed), the beneficiary is always going to lose out and the goal of providing the
right level of assistance is endangered.
This short outline of some coordination problems in the field of long-term care
already clearly shows that there is room for improvement and that a reflection on a
new specific chapter is valuable.
This reflection exercise has already been taken up by the Administrative
Commission. It is, however, a very complicated and sensitive matter. Not only do the
legal and administrative problems mentioned above need a solution, but so too have
other fundamental issues to be resolved. The definition of ‘long-term care benefits’
alone could be very problematic to agree on for the Member States, certainly in the
context of social security coordination. This is all the more the case due to the variety
of systems in existence. One could have high hopes, as the definition did not seem to
pose any problems to the Social Protection Committee for the Joint report on social
protection and social inclusion53, but minds could be different when it comes to the
51 Although after the Bosmann case, one should start reflecting whether the person is not entitled to
the cash benefits of his Member State of residence. Or could Article 18 EC concerning EU citizenship
be of any help in some circumstances?
52 A solution has already been incorporated in the pending proposal for a new Implementing
Regulation.
53 C.f. http://ec.europa.eu/employment_social/spsi/docs/social_inclusion/2008/joint_report_en.pdf.
62 Intersentia
coordination of these benefits.54 But next to the problem of defining what we are
talking about, other fundamental questions, requiring thorough investigation and
debate, have to be addressed. Should this new chapter be created or will a debate on
it immobilise the coordination of these benefits totally? As several Member States
provide long-term care in the framework of genuine social assistance schemes,
now falling outside the scope of coordination, should these ‘social assistance long-
term care benefits’ be integrated into this new chapter? Or could such benefits be
considered as benefits solely looking at the specific protection of disabled persons,
so that they would be seen as a SNCB in accordance with Article 70 of Regulation
883/2004? Otherwise, a misbalance will be consolidated between Member States with
long-term care benefits in their social assistance schemes and those who framed the
benefits in their social security scheme, the latter States then being overburdened. Or
should social assistance just be left to the provisions of Directive 2004/38 regarding
the free movement of citizens? Should the benefits for carers be considered or is it
better to restrict the system to the benefits for the persons in need?55 Furthermore,
instead of having various solutions to the problems of exportation dealt with under
the sickness chapter, a totally new approach could be introduced by designating the
task of granting long-term care benefits always to the Member State of residence. This
would probably only require a minimum of additional provisions in the sickness
chapter of the current regulation. If the exportation rules are preserved, should
there be any adaptation of the amount to be paid by the competent Member State
depending on the cost of living in the Member State of residence? What about a sort
of Vanbraekel-top-up from the competent Member State if the national entitlement
to long-term care benefits is larger than the amount reimbursed for the benefits in
the Member State of residence? These are all open questions. So there is a lot of food
for thought in this area, where maybe the most striking preliminary conclusion is
that, before the regulation even starts to apply, some serious thinking is required on
modifying it drastically.
In addition to this, no special provisions were included for educational or parental
benefits. It is well known that under Regulation 1408/71 they are considered to be
family benefits.56 The situation, in particular, of the parent who has the right to the
benefit, is irrelevant in that respect.57 Questions could however be raised with respect
to which State is competent. Are parental benefits linked to the children or to the
parents?
54 In Article 34 of Regulation 883/2004 dealing with overlapping of long-term care benefits it is

mentioned that long-term care benefits in cash have to be treated as sickness benefits.
55 The Gaumain-Cerri and Barth case certainly suggests that also the carer’s benefits should be taken
into account. Case C-502/01 Gaumain-Cerri and Barth [2004] ECR-6483.
56 Case C-543/03 Dodl [2005] ECR-5049 and Case C-153/03 Dodl [2005] ECR-6017.
57 Spiegel, B., ‘Die neue europäische Sozialrechtskoordinierung’, in Die Reform des Europäischen

Let us take the following example: a man works in Germany where he lives with
his wife. She works in Austria. She takes parental leave. Which is the competent State?
If one follows the rules of family benefits, Germany would be the competent State.
If one looked, however, more closely at the situation of the woman, Austria would
perhaps be preferable. Austria would only have to pay a possible differential amount.
If one pays more attention to the individual situation of the parent, questions can be
raised as to the appropriateness of this provision.
4. ENHANCED EQUALITY OF TREATMENT,

ASSIMILATION AND AGGREGATION
4.1. EQUAL TREATMENT
The principle of equal treatment enshrined in Article 3 of Regulation 1408/71 has

always been an extremely important provision for the coordination of social security.
It protects persons under the scope of the Regulation who are resident in a Member
State against overt, and also indirect, discrimination on the grounds of nationality.
Such discriminations may be found in national social security legislation and more
specifically in the conditions for affi liation, for entitlement or for the payment of a
benefit. This prohibition of discrimination has always been broadly interpreted
by the Court of Justice and has therefore always been a precious guarantee in the
coordination system. This key principle of European social security coordination has
kept the same value in the new regulation and has even been reinforced in two ways.
Firstly, in Article 4 of the new regulation the prior condition of residence on the
territory of a Member State is no longer required. The reference to residence was still
in the initial Commission’s proposal, but it was taken out by the European Parliament,
which based its argumentation on the Meeusen case,58 repeating and generalising this
decision to conclude that the entitlement to ‘certain benefits cannot be denied on
grounds of residence’.59 The result of this change is that persons under the scope of
the Regulation will be able to invoke the right to equal treatment with regard to social
security legislation, even if they reside in a non-EU country, thereby extending the
territorial scope of the regulation. The impact of this provision should not, however,
be exaggerated. There should still be a cross-border element within the EU. A possible
example where this clause could have an impact is the situation where, according
to national law, with respect to the export of pension benefits, a distinction is made
between own nationals, who would receive an unlimited export, and other nationals,
58 Case C-337/97 Meeusen [1999] ECR-3289.

64 Intersentia
where the amount of pension benefits would be diminished when residing outside the
EU.
4.2. ASSIMILATION OF FACTS
Secondly, and certainly no less importantly, a new provision was incorporated with
regard to the assimilation of facts, events and income (replacement). This was already
in the first proposal of the European Commission, but the European Parliament made
a separate provision on this aspect of equal treatment and added ‘other income’ to
social security benefits.
Article 5 will enhance equality of treatment in the field of social security
coordination, as it will make sure that foreign aspects of a given social security situation
will be taken into account. It will provide considerable legal simplification and a clear
uniform rule for all Member States. So if Member State A requires a fact or event in its
social security legislation for a legal effect to take place, then Member State A will have
to give the same legal effect to this fact or event if it occurred in Member State B. The
same counts for the receipt of social security benefits or other income. This is not a new
concept, as the current regulation already contains assimilation provisions for specific
situations. Moreover, the equal treatment of foreign benefits and income in Article 5(a)
of the new regulation already finds its parallel in Article 12(2) of 1408/71 concerning
the overlapping of benefits.60 Specific references to this have become abundant now that
assimilation has received the status of general principle in Regulation 883/2004. Far
more important, however, is Article 5(b). There could be a risk that national legislators
are not in a position any more to limit their legislation to national facts or events. But
this general provision is not just a matter of simplification, as it clearly responds to a
need to provide a coordination rule for assimilation in situations that were not dealt
with under the current regulation. On the other hand, one may not ignore that the
Court of Justice has always interpreted such situations in a broad way. For example, in
the Roviello case,61 the Court considered a point of German legislation contradictory
to the Regulation as it provided that in order to control the reduction of the capacity
to work for obtaining a pension entitlement, only occupations in Germany are taken
into account. In the Kauer case,62 child raising periods abroad were only recognised as
60 Article 12(2) of 1408/71: ‘Save as otherwise provided in this Regulation, the provisions of the
legislations of a Member State governing the reduction, suspension or withdrawal of benefits in
cases of overlapping with other social security benefits or any other form of income may be invoked
even where such benefits were acquired under the legislation of another Member State or where
such income was acquired in the territory of another Member State’. One has to admit that Article 5
goes one step further, as it is not only limited to the reduction of benefits but also looks at all aspects
related to obtaining a benefit.
61 Case C-20/85 Roviello [1987] ECR-2805.
62 Case C-28/00 Kauer [2002] ECR-1343.

substitute periods for the purpose of old-age insurance if one received cash maternity
allowance from that State. Further issues arose in cases like Duchon63 and Paraschi.64
In Duchon, a case concerning an occupational disability pension65, the Court even
decided that certain provisions of the regulation (Article 9(a)) ran counter to the
principle of assimilation. In Paraschi, the denial of assimilation was quite clear, where
the national legislation, providing for the prolongation of a reference period for an
invalidity pension due to certain facts or circumstances, refused to prolong the period
where the same facts and circumstances had occurred in another Member State. There
was clearly a need for uniform provision.
However, attention should be paid to avoiding that this principle is taken too far
and is abused for the creation of periods of insurance. Therefore the Preamble to
Regulation 883/2004 foresees that this principle may not interfere with the principle
of aggregation of periods, neither may it render another Member State competent.
This last rule makes clear that an assimilation of facts can only be undertaken by an
institution that is, at the moment the facts or events occur, already competent. An
institution may not become competent as a result of the application of the principle of
the assimilation of facts. The competent State must always assimilate facts in another
State with its own periods. This principle therefore only deals with the fulfilment of
the qualifying conditions in the competent State and not with the determination of
the competent State. Still, one could say that, although the Preamble may help with the
interpretation, there are no clear provisions in the articled text of the new Regulation
explicitly pre-empting the acquisition of periods to be considered as a fact or event,
which is to be assimilated.
A specific problem of assimilation existed with respect to the recognition of
child-raising periods for old-age pensions. With child-raising periods the problem
is different, as here it is important to know if foreign events or facts have also to be
honoured by the State that is not competent at that moment. It should be made clear
that a Member State is not responsible for every period of child raising somewhere in
the European Union, but that one way or another this Member State must still have
some competence. The recognition of these periods, which were completed in a certain
Member State, often posed various problems in the Member State competent for the
pension. In principle, countries where pensions are based on a certain duration of
residence do not contain this kind of validation in their systems, as there is obviously
no reason for this in a residence-based system. Problems occur when the child-raising
periods were completed in Member States with other schemes, namely systems that
do validate these periods. Problems also occur when these periods are regarded as
63 Case C-290/00 Duchon [2002] ECR-3567.

64 Case C-349/87 Paraschi [1991] ECR-4501.
65 In which, for the calculation of the reference period, only national periods during which the person
concerned received an occupational disability pension were taken into account.
66 Intersentia
family benefits in one Member State where the beneficiary resided but not in another
where periods of child-raising were also completed. Regulations 1408/71 and 574/72
did not provide the answer to these problems, and the final decision was left up to
the national legislation of the Member State where the child-raising periods were
completed. When trying to find the answers in Court cases, a lot of question marks
remained. Applying Kuusijärvi,66 concerning family benefits, leads to a loss of all
rights for persons leaving the Member State in which they resided, while the ‘sufficient
link’ doctrine in Kauer67 and Elsen68 with regard to the State of last employment left
a lot of room for interpretation. It was expected that the new principle of assimilation
would provide a solution, but even the new Article 5 does not provide a satisfying
answer to the specific problems of coordination of these periods. It is preferable to
avoid a Member State being responsible for every period of child raising somewhere
in the European Union and that the division of competences between Member
States be changed. In accordance with consideration 11 of the Preamble of the new
Regulation, the assimilation of facts or events occurring in a Member State may in
no way render another Member State competent or its legislation applicable. Only in
exceptional cases (when the State of residence does not consider child raising periods)
would the state where the activity was performed remain competent. A solution is
now incorporated in the pending proposal for a new implementing regulation.
Where, under the legislation of the Member State which is competent under Title II of
Regulation 883/2004, no child raising period is taken into account, the institution of
the Member State whose legislation according to Title II was applicable to the person
concerned because of pursuing an activity as an employed or self-employed person
at the date when, under this legislation, the child raising period started to be taken
into account for the child concerned, shall continue to be responsible for taking into
account this child raising period as child raising periods under its own legislation, as
if this child raising took place in its own territory..69
4.3. AGGREGATION OF PERIODS
As mentioned before, the principle of assimilation has been distinguished from

the aggregation of periods so that no unwanted interdependence would be sought.
As explained in the Preamble, periods completed under the legislation of another
Member State should therefore be taken into account solely by applying the principle of
aggregation of periods. Aggregation must not lead to the consequence that a Member
State should be obliged to take into account for the calculation of benefits facts or
66 Case C-275/96 Kuusijärvi [1998] ECR-3419.

67 Case C-28/00 Kauer [2002] ECR-1343.
68 Case C-135/99 Elsen [2000] ECR-10409.
69 Article 44.2 of the Provisional Agreement for a new Implementing Regulation.

events in another Member State, without these facts being considered as periods of
insurance in that other State. Only existing insurance periods may be aggregated,
but no new ones created. This aggregation of periods of insurance, employment or
residence can be found in each chapter of the current regulation, protecting the
acquisition, retention or recovery of rights. Regulation 883/2004 has, however, brought
these provisions to the forefront and transformed them into one general provision to
be applied horizontally. As a result it does not have to be repeated for several specific
situations related to the different social security risks,70 with the exception of special
provisions (that is, the special aggregation rules for unemployment benefits in Article
61, and the absence of aggregation rules for pre-retirement benefits in Article 66).
Article 6 must be read together with Article 5 on the assimilation of facts.
Insurance periods (and assimilated periods) may therefore also be accepted when,
according to national law, it is required that the periods are preceded or followed
by insurance periods, and these periods have been fulfilled in another State.71 The
condition remains, however, that this State is at that moment the competent State.
For example, if according to a Member State’s legislation certain periods can only be
assimilated if the person concerned was insured in that State, this provision allows for
assimilation to also take place when he previously worked and was as such insured in
another State. The same principle also applies to voluntary insurance. In accordance
with Article 14(4), it is determined that in case admission to voluntary insurance is
conditional upon residence in that Member State, the equal treatment of residence
in another Member State shall only apply to persons who have been subject at some
earlier stage to the legislation of that first State on the basis of an employed or self-
employed activity. This was already the rule in Regulation 1408/71, Articles 9 and
15.72 This limit should prevent voluntary insurance in a Member State being open to
everybody who has been insured in another Member State before.
70 For technical reasons, one special aggregation provision was maintained in the unemployment
benefits chapter. See the contribution by Pennings in this issue.
71 Spiegel, B, ‘Die neue europäische Sozialrechtskoordinierung’, in Die Reform des Europäischen
72 See the Case C-70/80 Vigier [1981] ECR-229. Article 9(2) under Regulation 1408/71 does not
require the social insurance institution of a Member State to take into account periods of insurance
completed under the legislation of another Member State when the worker concerned has never
paid, in the first Member State, the contribution required by law in order to create his status as an
insured person under the legislation of that Member State.
68 Intersentia
5. EXPORT OF BENEFITS: WATCH OUT FOR THE EU

TREATY AND THE EUROPEAN CITIZEN
5.1. EXPORTABILITY
For the protection of acquired social security rights, the exportability of benefits is
essential. The central role to satisfy this general principle of coordination is played by
Article 10 of Regulation 1408/71, which waives residency rules for most of the social
security benefits under the scope of the regulation. This rule for the export of benefits
has been strengthened in the new regulation as it now unambiguously stated that,
besides the specified exemptions, all cash benefits are exportable.
In practice, Article 7 cannot be regarded as a tremendous change in comparison
with the current situation. Some small victories for the principle of the exportation
of benefits can be found in the details of various specific chapters. One example is
the somewhat more lenient approach towards the export of unemployment benefits,
even if this is much less radical than the Commission’s first proposal. This proposal
contained an extension of the exportability of unemployment benefits from 3 months
to 6 months. The final text of the new regulation holds a compromise solution and
keeps the three months rule, with a possibility of extension to six months. With regard
to planned cross-border health care provision, the change from urgent to medically
necessary care also represents a widening of the scope for the ‘exportation’ of sickness
benefits.
5.2. NONEXPORTABILITY
However, in the context of the export of benefits, the exceptions have always drawn
more attention than the rule. This is the case for the aforementioned limited export
of unemployment benefits, but even more so for the peculiar category of special
non-contributory benefits. In Article 10a of the current regulation it is stipulated
that the waiving of residency rules does not apply to special non-contributory cash
benefits (SNCB’s), which means that they can only be granted by the Member State
of residence of the beneficiary according to the legislation of that state. This rule has
remained unaltered in the new regulation, but the legislator has visibly not forgotten
the lessons learnt in the Jauch73, Leclere74, Hosse75 cases and Commission vs. European
Parliament and Council76, with respect to the caution or reticence that should be kept
regarding the recognition of certain benefits as SNCB’s. The definition has become
73 Case C-215/99 Jauch [2001] ECR-1901.

74 Case C-43/99 Leclere [2001] ECR-4265.
75 Case C-286/03 Hosse [2006] ECR-1771.
76 Case C-299/05 Commission vs. EP and Council [2007] ECR-8695.

stricter, with clear criteria to enhance transparency and legal certainty. These criteria
will thus apply to all Member States so that similar benefits will be treated in the same
way, and this may also reduce the unlawful listing of benefits in the new Annex X.
However, these modifications in the basic regulation for coordination are somewhat of
a theoretical nature and it remains to be seen how this will be applied in practice, not
least as Member States are from time to time inventive in finding arguments as to why
their legislation should be considered different to that of other states, and why their
benefits should be considered as SNCB’s. What is certain is that the new article will
not avoid all interpretation problems, and the saga regarding qualification as an SNCB
will continue. Further discussions might be expected in relation to the qualification of
national benefits as SNCB’s. Chapter 9 with the new Article 70 of Regulation 883/2004
is dedicated to SNCB.
The rules on the export of benefits have remained the same to a very large
extent. An important question is which role European citizenship provisions or the
fundamental economic freedoms of the EU Treaty can play in this context. It goes
without saying that every derogation to the principle of the export of benefits may be
challenged, based on the free movement rights of EU citizens. Such challenges could
be successful if no satisfying objective justification could be given for this restriction
of the citizen’s right to move and reside throughout the EU. More importantly, the
restriction will have to be proportional to this higher purpose. This is true for SNCB
and unemployment benefits. For SNCB, there is the clear and closed system for
receiving these when residing on the soil of the state that is granting them. The system
is simple: if you leave Member State A for Member State B, you lose them in A and
you get them immediately in B. But this system does not mean that every SNCB is
freed from the influence of the citizenship or Treaty rules. It may well be that the non-
exportability of a particular SNCB in Member State A cannot be justified under the
free movement of citizens or workers, despite the coordination system that is worked
out in 1408/71 and kept in 883/2004.
A recent example can be given here. Although, for instance, in the Hendrix
case the Court of Justice considered a Dutch benefit for young handicapped people,
listed in Annex II a of the Regulation 1408/71, as non-exportable, it questioned the
compatibility of the non-export with the principle of the free movement of workers
under Article 39.77 This benefit was thus a genuine SNCB and could only be received
within the territory of the Member State of residence, the Netherlands. The Court
confirmed this rule of coordination, but added that ‘implementation of that legislation
[Regulation 1408/71] must not entail an infringement of the rights of a person in a
situation such as that of the applicant in the main proceedings which goes beyond
what is required to achieve the legitimate objective pursued by the national legislation’.
It was up to the national court to decide on this issue, and after weighing the national
77 Case C-287/05 Hendrix [2007] ECR-6909.
70 Intersentia
legislation in the light of these principles, the national court declared the non-export
clause as not applicable.78 That the Treaty’s citizenship provisions are problematic for
non-export rules for unemployment benefits is perfectly illustrated in the De Cuyper
case, in which the limited export of those benefits was considered a restriction on
the free movement rights of an EU citizen. It should thus be kept in mind that th7e
Court is not hesitant to qualify this rule as a restriction, forcing the non-exporting
Member State to give a good policy reason for this decision. It does not suffice to refer
to the Regulation to justify a non-export rule in the national legislation that is in
accordance with its provisions. The Court does not refrain from looking beyond or
maybe even overlooking the European coordination system. In De Cuyper, the ECJ
was very benevolent and accepted the rather unconvincing justification of the Member
State in question.79 However, there is no guarantee that other similar rules will not be
caught in the snares of EU citizenship rights. This has recently become very clear in
the Petersen case80 concerning an Austrian advance granted to unemployed persons
who have applied for the grant of a benefit under the statutory pension and accident
insurance scheme. In this case the Court declared that in as much as no factor has been
put forward to show that such a non-exportability condition was objectively justified
and proportionate, Article 39 EC must be interpreted as preventing a Member State
from making the grant of a benefit such as the one at issue, which must be regarded
as an ‘unemployment benefit’ within the meaning of Article 4(1)(g) of Regulation
No 1408/71, subject to the condition that the recipient be resident in the national
territory of that State. Relying directly on the EU Treaty has as a consequence that
every rule will now be judged and placed on the balance of the general impediment of
free movement test, i.e. is the application of the rule in question an impediment, for
which an objective justification can be found, and is the principle of proportionality
respected?
The most difficult issue for Member States is to find a possible objective justification
for non-export of a benefit, and in particular to prove that the proportionality clause
is respected. While finding an objective justification will still be easy, passing the
proportionality test becomes much more complicated. Until now, Member States have
hardly been in a position to do that. Examples such as those above make clear that the
regulations are not anymore the only route to European coordination. National rules,
as well as the rules of Regulation 1408/71, are now counter to the direct application
78 See Centrale Raad van Beroep, Case 01/3406 [2008]: www.tress-network.org/TRESSAJAX/

DATABASE/NATCASELAW/NL/LJN%20BC5204.pdf.
79 Case C-406/04 De Cuyper [2006] ECR-6947. In this case the Court confirms that the residence
clause, which is imposed on an unemployed person who is exempt from the requirement to be
available for work as a condition for the retention of his entitlement to unemployment benefits,
is a restriction, which was however justified by the need to monitor the employment and family
situation of an employed person.
80 Case C-228/07 Petersen [2008], not yet published.

of the EU Treaty provisions, where Member States will have to justify possible
impediments and where the concrete justification in each particular case must be
assessed, including in the light of the proportionality test. Taking into account the case
law of the Court of Justice on the free movement of persons, this happens not only in a
very abstract way, but also has to be applied to the particular situation of the case and
of the person concerned. This in concreto evaluation may lead to an increased review
of the conformity of the entire Regulation with the general principles of EU law. Even
national rules that might be in conformity with the Coordination Regulations, as well
as the social security coordination Regulation itself, will have to pass in a growing way
the test of conformity with the fundamental principles of Community law.
6. APPLICABLE LEGISLATION UNDER SIEGE
6.1. CONFLICT RULES
The chapter on applicable legislation, i.e. the conflict rules regarding social security
matters, is probably the most known by non-specialists and, certainly given the recent
debate on unfair competition in the context of cross-border employment, one of the
more frequently discussed. It is contained in Title II, of which the provisions ‘constitute
a complete and uniform system of conflict rules the aim of which is to ensure that
workers moving within the Community shall be subject to the social security scheme
of only one Member State, in order to prevent more than one legislative system
from being applicable and to avoid the complications which may result from that
situation’.81 This section of the coordination regulation not only holds the general rule
for the assignment of the competent Member State in a particular cross-border social
security situation, but also some special rules. The coordination system determines the
legislation applicable, but it also makes sure that, in principle, one single legislation
is applicable for benefits82 as well as for contributions.83 It is designed to prevent the
simultaneous application of two or more social security legislations, but also to avoid
migrating persons falling between stools, as the combination of the requirements of
different national systems can also result in the application of no system at all. This
rule has an exclusive and overriding effect. It is exclusive, as no legislation can be
applicable other than the one indicated in the coordination system, and overriding,
as national affi liation conditions are waived if their application would deprive the
conflict rules of their practical effect.
The general rule is that the legislation applicable is the legislation of the Member
State in which the migrant worker performs his economic activities, i.e. the legislation
81 Case C-71/93 Van Poucke [1994] ECR-1101.

82 Case C-302/84 Ten Holder [1986] ECR-1821.
83 Case C-169/98 Commission vs. France [2000] ECR-1049.
72 Intersentia
of the workplace or the ‘lex loci laboris’. Special rules are provided for categories such
as persons working in two or more Member States, international transportation
personnel, mariners, people working as an employee and as a self-employed person
in different countries, civil servants with other occupations and persons employed
by diplomatic missions and consular posts. A specific special rule relates to posted
workers, employed and self-employed, for which the legislation of the Member State
where they normally perform their activities can remain applicable during a certain
period of activities abroad. In principle this period is settled at twelve months, with a
possible extension of another twelve months. Different conditions have to be met to be
legally posted according to the regulation. The unusual applicability of the legislation
of the Member State of residence for SNCB’s should also be mentioned here.
Regulation 883/2004 here, again, did not bring any radical changes to the rules.
Broadly speaking, the main general and special rules have remained but they have
been cleaned up, modernised, better structured and made more coherent. The lex loci
laboris principle still rules, and for economically non-active people, there is a clear
reference to the Member State of residence.84 This is the State of previous activities
in the case of receipt of short term benefits in cash. For persons with occupations in
two or more Member States, the rules have not been substantially changed, but they
have been simplified with a dominant role for the state where a significant part of
the activities is performed. The new regulation also addressed several special rules
for special groups that were unnecessarily complicating the coordination system. In
this exercise of removing ‘special treatment’ from the regulation, the special rules
on frontier workers throughout the regulation (unfortunately) remained largely
untouched. The posting rule is also still intact as before, but the posting period was
increased from 12 months to a standard period of 24 months, making extension rules
(and forms) superfluous. However it is not the objective of this contribution to go into
detail about the different modifications made to these provisions. More fundamental
to our opinion is the debate on the general principles behind the rules on applicable
legislation.
6.2. NEW PERSPECTIVES
Although the new regulation is not yet applicable, it is not premature to say that the
rules on applicable legislation therein are under fire and there may be room or even
84 It should be highlighted that some categories of temporarily inactive people are assimilated with
active persons under Regulation 883/2004: ‘For the purposes of this Title, persons receiving cash
benefits because or as a consequence of their activity as an employed or self-employed person shall
be considered to be pursuing the said activity’. Th is is not the case for people expected to remain
inactive: ‘Th is shall 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’ (Article 11(2) of Regulation 883/2004).

need for a rethinking. The fundaments of this chapter have not been questioned in
the new regulation, but they are challenged from outside of the coordination system.
The influence of the recent case law of the Court of Justice and the pressing socio-
economic reality of changed and still changing migration patterns are especially
worth mentioning in this context. While the Regulation was set up at the time when
workers had full-time, permanent employment relationships and the migrant worker
was someone who moved to his work state and at the end of his career returned to his
state of origin, we see a different picture today. There is a greater diversity with a range
of different types of migrant workers, including frontier workers, temporary migrant
workers, and pan-European management staff, contributing to a growing pan-
European labour market. There is growing intra- and inter-organisational movement,
questioning the current rules on applicable legislation, which might complicate even
further this new migratory behaviour. New patterns of migration85 and the specific
problems some of these categories of workers encounter, quite often result in appeals
to enact particular conflict rules that are adapted to the specific characteristics and
needs of these people and their companies.86
Attacked from all sides by Treaty principles – European citizenship, freedom of
movement, free movement of services and goods, etc. – the coordination regulations
look more and more like a too-technical system, outdated and therefore easily subject
to overruling based on more fundamental principles. Several recent cases in the
Court of Justice are directly based on Treaty rules, leaving aside the coordination
rules (see for instance Nemec87 and Bosmann88). This tendency highlights the lack of
adaptation to these principles of Regulation 1408/71 and, although not applicable yet,
of Regulation 883/2004. The recent Bosmann case excellently illustrates this attack
on the fundaments of the coordination rules. Until this case, the Court held on to
the statement that these conflict rules imply that the laws of no other Member State
than the one designated as competent can apply. This prohibition seems to be recalled
in Bosmann. Influenced by the concept of European citizenship, the Court provided
that while Germany, which was not the competent State (the citizen worked in the
Netherlands and resided in Germany), was not compelled to provide family benefits to
85 Here it needs to be noted that not only do the new patterns of migration pose problems in the field of
the coordination of social security, but so too do new patterns of work. ‘Teleworking’ is an example
of such a brainteaser if one has to apply the current coordination rules to it.
86 See about new forms of mobility and possible new confl ict rules, the report prepared by the think
tank within the trESS project (Training and Reporting on European Social Security), Jorens, Y. and
Lhernould, J.P. (eds.), Fillon, J.C., Roberts, S. and Spiegel, B., ‘Th ink Tank Report 2008, Towards
a new framework for applicable legislation. New forms of mobility, coordination principles and
rules of confl ict, Training and Reporting on European Social Security’, Project DG EMPL/E/3 –
VC/2007/0188, Brussels, 2008, 34, published on the trESS website (http://www.tress-network.org).
For the moment the think tank focuses on the special situation of intra-group mobility.
87 Case C-205/05 Nemec [2006] ECR-745.
88 Case C-352/06 Bosmann [2008], not yet published.
74 Intersentia
residents, Regulation 1408/71 does not preclude that German authorities provide such
benefits when they are subject to a condition of residence on its territory.
Although the ECJ does not acknowledge it, this case affects the principles set, for
instance, in Ten Holder.89 Indeed, without the harmonisation of national schemes, it
was traditionally ruled that ‘the Treaty offers no guarantee to a worker that extending
his activities into more than one Member State or transferring them to another
Member State will be neutral as regards social security. Given the disparities in the
social security legislation of the Member States, such an extension or transfer may be
to the worker’s advantage in terms of social security or not, according to circumstance.
It follows that, in principle, any disadvantage, by comparison with the situation
of a worker who pursues all his activities in one Member State, resulting from the
extension or transfer of his activities into or to one or more other Member States
and from his being subject to additional social security legislation is not contrary
to Articles 48 and 52 of the Treaty if that legislation does not place that worker at a
disadvantage as compared with those who pursue all their activities in the Member
State where it applies or as compared with those who were already subject to it and
if it does not simply result in the payment of social security contributions on which
there is no return’.90
The Bosmann case raises many theoretical and practical questions. From a
theoretical point of view, it is true that neither the lex loci laboris rule of conflict nor
the principle of only one legislation being applicable is formally violated by the ruling
of the Court. It is even confirmed. If the legislation of the State of residence, the lex
domicilii, can be a source of benefits for the residents, it is only by the unilateral will of
the State of residence. From a practical point of view though, there are many problems.
The German judge will not be able to turn down the claim if family benefits are only
subject to a condition of residence in Germany, unless he considers that Regulation
1408/71 prevents the application of a second simultaneous national legislation.
German authorities may introduce in their domestic law a provision stating that
‘family benefits are granted to all persons resident on the German territory, with
the exclusion of persons who are subject to another EU legislation according to
coordination rules of the Regulation’. However, such a provision would probably be
seen as a typical indirect discrimination based on nationality. The option opened by
the ECJ would therefore turn into an obligation.91
An evaluation of the scope of the Bosmann case is needed. We could think that
the reasoning in the ECJ’s ruling is limited to family benefits, especially since such
89 Case C-302/84 Ten Holder [1986] ECR-1821.

90 Case C-393/99 Hervillier [2002] ECR-2829.
91 See Jorens, Y. and Lhernould, J.P. (eds.), Fillon, J.C., Roberts, S. and Spiegel, B., ‘Th ink Tank Report
2008, Towards a new framework for applicable legislation. New forms of mobility, coordination
principles and rules of confl ict’, Training and Reporting on European Social Security Project, DG
EMPL/E/3 – VC/2007/0188, Brussels, 2008, 26.

benefits can already be simultaneously provided, in specific circumstances, by two

legislations. In this light, Bosmann could be seen as an extension of the original method
of coordination applied to family benefits. Nevertheless, such an interpretation could
be restrictive. Indeed, the reasoning of the Court based on Article 42 EC could apply
to all social security branches: ‘the provisions of Regulation No. 1408/71 must be
interpreted in the light of Article 42 EC which aims to facilitate freedom of movement
for workers and entails, in particular, that migrant workers must not lose their right
to social security benefits or have the amount of those benefits reduced because they
have exercised the right to freedom of movement conferred on them by the Treaty’.
Let us take the example of healthcare benefits in kind: is it conceivable that a person
working in a Member State and residing in another be entitled to healthcare coverage
in the latter state if the workplace legislation does not provide healthcare insurance?
The European Court of Justice here seems to apply the Petroni-principle92 to the
conflict rules. The application of the Regulation, leading to a situation in which the
person concerned would be deprived of rights and benefits foreseen under national
law – the national legislation which would apply to the person concerned, if he would
not have relied on the conflict rules of the Regulation – would be in contradiction to
the fundamental objective of free movement. National entitlements must therefore
always be taken into account.
Is this case perhaps opening Pandora’s Box, where migrant workers might apply
for the application of another second legislation in cases where this would be more
beneficial to them? It is evident that the last word has not yet been said about Bosmann
and that the consequences of this case might further influence the fundamental
principles as they have been applied and interpreted during the past 50 years.
But while the consequences of this case concentrate on the “single applicable
legislation” rule, the rules on the applicable legislation in general can also be
questioned, from different angles. It is clear that these rules, having their roots in
the migration patterns of the seventies, cannot possibly meet today’s needs fully. The
concrete answer to these challenges requires however more than just a mere cosmetic
adaption of the conflict rules and, more fundamentally, the question is whether the
current rules would pass the test of the general principle of free movement. That is
why they should be reflected on from a perspective of finding the right balance for all
parties involved: the worker, the employer and the social security institutions.93 In
order to reflect on how to achieve a better balance of the interests of the stakeholders
92 Case 24/75 Petroni [1975] ECR-1149.

93 Th is is the idea that the think tank of trESS on new forms of mobility has elaborated: a balance
of interests for determining the applicable legislations. See Jorens, Y. and Lhernould, J.P. (eds.),
Fillon, J.C., Roberts, S. and Spiegel, B., ‘Th ink Tank Report 2008, Towards a new framework for
applicable legislation. New forms of mobility, coordination principles and rules of conflict, Training
and Reporting on European Social Security, Project DG EMPL/E/3 – VC/2007/0188, Brussels, 2008,
34 p.
76 Intersentia
in the framework of the free movement of persons, a set of questions can be raised.
Some of these even touch upon the very essence of the coordination system, i.e. the
neutral character, the compulsory character and the exclusive and overriding effect of
the conflict rules.94
One could for instance call the principle of “single applicable legislation” into
question. The correct application of the principle, which states that from the moment a
second activity is taken up in the state of residence only the legislation of that Member
State shall apply, deprives the person of all benefits (save sickness benefits in kind)
from the state of his main professional activity (which was originally competent).
This can be an important disadvantage because, usually in border regions, there are
‘rich’ Member States where the main employment is exercised and ‘poor’ Member
States where the persons reside as frontier workers. The ‘rich’ Member States usually
provide better benefits (e.g. higher family benefits) than the ‘poor’ Member States.
Therefore, the change of competence linked with the fact that the person takes up a
second job in his state of residence will inevitably lead to the loss of benefits, such as
family benefits, from the Member State of main activity. Should the ‘lex loci laboris’ be
adapted? Should a more personal and subjective application be encouraged, a method
which would stem from the principle of proportionality? Some cases, including old
cases (such as Miethe, in the area of unemployment benefits – see the contribution by
Pennings in this issue), take into account personal situations. Should this technique
be formalised and extended?
Additionally, if ensuring that the free movement of workers remains the goal of
coordination rules, many solutions drawn from the application of Regulation 1408/71
and 883/2004 may be considered as incompatible with Articles 42, 39 or even 18
of the Treaty. This is the case, for example, for frequently moving mobile workers,
who have to change of legislation every time they take up a new job: by not ensuring
continuity in the applicable legislation, this system is an impediment to their freedom
of movement.
Further reflections are advisable. In this respect we can mention the work of the
think tank set up in the trESS project95 that reflects on the impact of new forms of
mobility on the co-ordination regulations, and that in particular looks at these issues
and at the question of whether it is appropriate to modify certain core concepts of the
determination of the applicable legislation.
94 For an elaboration of these issues, see Jorens, Y., ‘Towards new rules for the determination of
the legislation applicable?”, speech held at the Prague conference organised by the European
Commission at the occasions of the “50th Anniversary of the European Coordination of Social
Security”, 7–8 May 2009, publication forthcoming (Y. Jorens (ed.) The past, the present and the
future of the Regulation).
95 See Jorens, Y. and Lhernould, J.P. (eds.), Fillon, J.C., Roberts, S. and Spiegel, B., ‘Th ink Tank Report
2008, ‘Towards a new framework for applicable legislation. New forms of mobility, coordination
principles and rules of confl ict’, Training and Reporting on European Social Security, Project DG
EMPL/E/3 – VC/2007/0188, Brussels, 2008, p. 34.

7. CONCLUSION
When the new coordination Regulation 883/2004 is analysed with a version of the
current Regulation 1408/71 in the background, one can conclude that the general
principles of coordination have remained the same. Consequently, we are still talking
about equal treatment, aggregation, export of benefits and rules for the determination
of the applicable legislation. This is not surprising, since during these 50 years of
Regulations 1408/71 and 574/72 many modifications and improvements were made.
This means in the first place that no new principles have been introduced in the new
basic regulation. Although the principle of good administration could be regarded as
new, it was already referred to in the ‘old regulation’. The strengthening of this principle
is however welcome as it articulates the importance of this cooperation. The principle
of the aggregation of periods may be new in the section on general provisions, but it
is certainly not new to the coordination system. Even the principle of assimilation of
facts is at the most a new sub-principle of the non-discrimination clause.
The long-existing principles are still in charge of the coordination system and they
were not fundamentally changed. They were rather, in line with the modernisation
and simplification exercise that was the initial goal of the reform, ‘elaborated in a
new way’ according to lessons learnt from the past, to the case law of the ECJ, and to
several developments in national social security legislation and in EU law. This new
elaboration can be found in the adaptation of several specific rules in the regulation
that were restructured, brought to the forefront, simplified, updated, made more
coherent, and so on.
For the personal scope of the regulation, this means that it has been brought in line
with the developments regarding EU citizenship and the new rights emerging from
the citizen’s rights to free movement and non-discrimination. But this is a symbolic
gesture rather than a concrete extension to any ‘new category of beneficiaries’, as
the regulation can already be regarded as an instrument applicable to almost every
migrating citizen in its current form.
Where one can be neutral on the new scope ratione personae, it should be clear
that the material scope of Regulation 883/2004 is a story of disillusionment. The
Commission not only lost the battle to prevent a new closed-list scope, the extension of
the list itself was also disenchanting. Pressing issues like the impact of patient mobility
case law on the sickness benefits chapter and the need for adjusted coordination rules
for long-term care benefits were left aside. The modest addition of paternity and pre-
retirement benefits does not make up for these lacunae.
The equal treatment and the export of benefits principles have also remained
intact. This is logical, as non-discrimination and exportability are central concepts
in old and new developments with regard to the free movement of persons, and the
coordination regulation could not and should not be the instrument to act as a brake
on them. The equal treatment rule was even strengthened through the generalisation
78 Intersentia
of the assimilation of facts. It remains to be seen whether the derogations to the

exportability rule will persist in full, when challenged against the free movement of
citizens.
Finally, regarding the rules on applicable legislation, one should reflect on the
consequences of the Bosmann judgment. As the first comments on this case refer
to earlier cases like Petroni and Vanbraekel, it could well be that this case is the
announcement of a new approach towards the conflict rules in the coordination
system. Just as was the case in the patient mobility case law, the Bosmann judgment
gives priority to a certain individualised view on the coordination rules, with the rights
of the insured person at the centre of attention. This may herald new developments
towards, bluntly stated, a coordination system ‘à la tête du client’, or at least towards
the possibility of adapting formerly stringent and inflexible rules.
This means that, even before Regulation 883/2004 is applicable, there is already
scope for sorting out some remaining and new issues, of which the coordination of
long-term care benefits and the rethinking of the conflict rules are respectively the
best and probably most pressing examples. So the story did not come to an end with
the new regulation, and the work is not yet finished. Why not put these issues in order
before the target date of March 2010?

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GENERAL PRINCIPLES OF COORDINATION

Yves Jorens and Filip Van Overmeiren*

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 47

Keywords: social security of migrant workers; general principles of coordination of

2. A STRONGER PRINCIPLE OF GOOD ADMINISTRATION

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 49

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 51

3. THE SCOPE OF THE NEW REGULATION

3.1. PERSONAL SCOPE

13 Regulation 1390/81 of 12 May 1981, OJ L 143 of 29 May 1981.

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 53

be noted that this simplification is only a Pyrrhus-victory, as a definition of employed

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 55

3.2. MATERIAL SCOPE: A QUASI STATUS QUO

26 Case C-299/05 Commission vs. EP and Council [2007] ECR-8695.

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 57

3.3. MATERIAL SCOPE: OMISSIONS

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 59

reimbursement from the competent Member State43, the reimbursement of costs of

43 Case C-368/98 Vanbraekel [2001] ECR-5363.

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 61

54 In Article 34 of Regulation 883/2004 dealing with overlapping of long-term care benefits it is

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 63

4. ENHANCED EQUALITY OF TREATMENT,

4.1. EQUAL TREATMENT

The principle of equal treatment enshrined in Article 3 of Regulation 1408/71 has

58 Case C-337/97 Meeusen [1999] ECR-3289.

4.2. ASSIMILATION OF FACTS

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 65

63 Case C-290/00 Duchon [2002] ECR-3567.

4.3. AGGREGATION OF PERIODS

As mentioned before, the principle of assimilation has been distinguished from

66 Case C-275/96 Kuusijärvi [1998] ECR-3419.

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 67

5. EXPORT OF BENEFITS: WATCH OUT FOR THE EU

73 Case C-215/99 Jauch [2001] ECR-1901.

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 69

77 Case C-287/05 Hendrix [2007] ECR-6909.

78 See Centrale Raad van Beroep, Case 01/3406 [2008]: www.tress-network.org/TRESSAJAX/

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 71

6. APPLICABLE LEGISLATION UNDER SIEGE

6.1. CONFLICT RULES

81 Case C-71/93 Van Poucke [1994] ECR-1101.

6.2. NEW PERSPECTIVES

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 73

89 Case C-302/84 Ten Holder [1986] ECR-1821.

European Journal of Social Security, Volume 11 (2009), Nos. 1–2 75

benefits can already be simultaneously provided, in specific circumstances, by two

92 Case 24/75 Petroni [1975] ECR-1149.

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of the assimilation of facts. It remains to be seen whether the derogations to the

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