This project has received funding from the European Union’s Seventh Framework Programme for research, technological development and demonstration under grant agreement no 320294

EU

WP6 Social Rights

Social rights constitute an area where the tension between achieving EU citizenship and the interests and  fears  of  national  citizens  is  of  paramount  importance  to  understanding   the  obstacles  and opportunities for achieving EU citizenship (Bussemaker 1999; Closa 1996; Magnusson 2004).

Free movement of persons was one of the ‘original rights’ and has remained one of the pillars of the EEC/EC/EU.  The right to freedom of movement for workers and the self-employed  has, from 1957 on, been accompanied by coordination regulations, which ensure that they have access to social security in the country they work in. The coordination regulations ensure inter alia prohibition of non- discrimination, aggregation of periods, export of benefits and determination of the social security legislation applicable. The Regulation (883/2004) was extended in 2010 to als include people who are not workers  or self-employed,  but is still limited by a set of statutory  schemes.  Also third country nationals can now, via Regulation 1231/2010, invoke the coordination rules of Regulation 883/2004, provided the facts of the case include at least two Member States.

This set of rules enables citizens to be insured and to claim benefits in a country other than the one they originate from and is a very important example of the rights individuals can derive from the Treaty. Until 2010, this right was limited to workers and the self-employed,  but now all nationals of Member States can invoke it and, under some conditions, also third country nationals. Since this area is well documented (extensively Pennings 2010) and under the permanent supervision of a special EU network (TRess), there is no need to study all the rights deriving from these instruments.

Note  that  the  material  scope  of  the  Regulation  is,  as  stated,  limiting.  Therefore  the  non- discrimination  rule (on the grounds of nationality) of Regulation 492/2011 is also important and this Regulation has a much broader material scope than the former one and includes all social advantages. However, it is limited to workers who make use of their right to freedom of movement i.e. those with an EU nationality (Pennings 2010).

Finally, the Treaty article on European citizenship, now article 21 TFEU, was interpreted by the Court as giving the right not to be discriminated  against on the grounds of nationality in several social  security  and social  advantages  cases,  e.g. Martínez  Sala judgment  (Case 85/96),  a landmark decision for the development of the EU citizenship provision, concerning child-raising allowance, Grzelczyk  (Case  184/99),  a student  claiming  social  assistance,  Trojani  (Case  456/02), concerning  a person dependent on doing rehabilitation work for the Salvation Army, and Förster (Case C-158/07), claiming student grants. So exactly the provision on EU citizenship expands the opportunity to claim social advantages in another Member State significantly. EU citizenship is limited to persons with an EU nationality. In the Förster judgment, the Court of Justice accepted a certain restriction to this right to the extent that Member States can require a certain degree of integration from the person in their community  before they are entitled to the social advantage  concerned  (student grants) (Hailbronner 2005).

There has therefore  been an important  development  of legal rights to claim benefits  in the broadest sense of the word in another Member State. However, the development of this right has not been completed yet, as there are still restrictions for some categories under some provisions, such as EU citizenship and they also remain in dispute. It is important to analyse this in further detail, taking into account several very relevant areas of social advantage including housing, healthcare, education and minimum incomes and to conclude which legal barriers there still are when claiming these rights, also at the national level, which justifications exist for doing so and which alternatives exist.

Alongside legal rights and restrictions, it is also important to look at the practical barriers to making  use  of these  rights.  For instance  language  barriers,  problems  with  reimbursement  and  the absence  of mutual  recognition  of documents  may make access  to rights difficult.  The attitude  and practice of the benefit administration  or healthcare  body, etc. may cause barriers. It is important  to study them systematically (Dwyer 2000).

The project will also study the justiciability  of social rights related to freedom of movement will be studied:  how effective  are the rights of redress  to arbitration,  conciliation,  legal assistance bodies  or  courts  for  citizens  seeking  to  enforce  their  social  rights?  In  this  respect,  the  national supporting   bodies  (e.g.  trade  unions),  NGOs,  conciliation/arbitration  bodies,  national  judiciary, supporting bodies, including the European Commission services, are taken into account.

For the studies planned in this Work Package (WP6) we will make use of expert reports from the countries selected for WP6 (the Netherlands, Sweden, Spain, the United Kingdom, Poland, Spain, Germany), which each represent a particular type of system of welfare state and cover all regions of the EU and therefore provide the materials on the basis of which we will write a more general report.

The analysis of the rights and barriers will result in a report with a theoretical framework in which the schemes and problems studied are categorised as ‘social constructs’, e.g. a subdivision  of rights  for  the  poor,  for  migrants,  for  the  middle  class, for  the  rich,  for  the  deserving  poor,  for rehabilitation purposes, etc. This framework is useful for explaining the barriers encountered and is therefore also important for making recommendations for the adjustment of tools and schemes.

Moreover, it is important to study whether there are differences between categories of the population  in  their  opportunities for  making  use  of  EU  citizenship  rights.  It  is  likely  that  such differences exist e.g. poor people face greater difficulty advancing the costs of healthcare obtained in another Member State (Dean 2011; Clasen et al 2011).

The barriers may also exist in the tensions between the interests of persons who make use of their EU citizenship rights and national citizens. If persons from other Member States have access to study grants, healthcare, housing, this may cause fears and frictions among national citizens and may make access to these rights more difficult. Practices such as waiting lists can limit the actual access to such rights. See for a description of the dilemmas in the field of patient rights (Pennings 2011; Van de Gronden 2011).

The expansion of the EU with many new Member States over the past eight years has led to new discussions on old rights following on from freedom of movement.

WP9 will analyse the Reports 6.1 and 6.2 from a gender and intergenerational  perspective. These cross-rights studies with a view of particular categories will also provide important insights into the barriers to access to social rights and there therefore will be a close cooperation and exchange of materials.

References:
–  Bussemaker, J. (1999), Citizenship and welfare state reform in Europe (London: Routledge)
–  Clasen,  J.,  Mau,  S.,  Meyer  T.  and  Seeleib-Kaiser,  M. (2011),  ‘Conclusion:  parallel  paths,  great similarities,  remaining  differences’, in Jochen Clasen (ed.) Converging  Worlds of Welfare? British and German Social Policy in the 21st Century (Oxford: OUP): 282-297
–  Closa, C. (1996), A new social contract?: EU citizenship as the institutional bases of a new social contract: some sceptical remarks (Florence: European University Institute, Robert Schuman Centre)
–  Dean,  Hartley  (2010),  Restoring  social  citizenship  in an age of new risks (London:  2020 Public Services Trust)
–  Dean, Hartley (2009), ‘Social policy and citizenship’, in: Electronic lecture series on social policy27 May 2009 (Oxford: Centre for the analysis of South African social policy: University of Oxford)
–  Dean,  Hartley  (2008),  ‘Flexibility  or flexploitation?:  problems  with  work-life  balance  in a low- income neighbourhood’  in: Maltby, Tony, Kennett, Patricia and Rummery,  Kirstein, (eds.) Social policy review (Bristol: Policy Press): 113-132
–  Dean, Hartley (2011), Poverty and the road to global social citizenship. CROP (The Comparative Research Programme on Poverty)
–  Dean, Hartley (2011), ‘The ethics of migrant welfare’ Ethics and social welfare, 5: 18-35.
–  Van de Gronden,  J.W.  et al. (eds.)  (2011),  Healthcare  and EU Law (The Hague:  T.M.C.  Asser Press)
–  Pennings Frans (2010), European Social Security Law. 5th edition (Antwerp: Intersentia): 382
–  Pennings Frans (2011), ‘The Cross-Border Health Care Directive: More Free Movement for Citizens and More Coherent EU Law?’ European Journal of Social Sciences 424-452
–  Parker, J. (1998), Citizenship,  work, and welfare:  searching  for the good society (New York: St. Martin’s Press)
–  Hailbronner,  K. (2005), ‘Union Citizenship  and Access to Social Benefits’,  Common Market Law Review, 42: 1245–1267
–  Dwyer, P. (2000), Welfare rights and responsibilities:  contesting social citizenship (Bristol: Policy 2000)
– Magnusson, L. and Strath B. (2004), European social citizenship?: preconditions for future policies from a historical perspective (Bruxelles; New York: P. I. E. – Peter Lange)
–  La Torre, M. (1998),  Citizenship  and social rights:  a European  perspective  (Florence:  European University Institute)