50 Years of European Social Security Coordination
| Author | Rob Cornelissen |
| DOI | 10.1177/138826270901100102 |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 9
50 YEARS OF EUROPEAN SOCIAL
SECURITY COORDINATION
R C*
Abstract
is article provides an historical overview of the major developments during 50
years of European social security coordination . It shows how the protection o ered by
the Community Regulations ha s been gradually extended and improved. e Court
of Justice has played a substantial role in this development. e extension of the
personal scope of the coordination rules f rom workers to EU citizens, as well as some
developments in their material scope, is highlighted. e principle of equ al treatment
has been reinforced in the new Regulation 883/2004, which will soon replace the
current Regulation 1408/71. e developments in the geographical application of
the coordination rules are highlighted as well as the importance of international
agreements concluded between th e EU and third countries. e ar ticle also shows the
growing impact of Treaty provisions governing othe r elds of Communit y law on the
coordination of social security. Cross-border health care is just an example. Special
attention is paid to the developments in the legal basis for Community legislation
on coordination of social security, including the introduction of clear compete nce to
legislate on third country nationals. In the conclusions a number of re ections are
expressed about where the coordination could , or indeed, should go in the future.
Keywords: history of coordination; principles of coordination; free movement; EU
citizenship; th ird country nationals; freedom to provide ser vices
* Dr Rob Cornelisse n is an Advisor at the D irectorate on Soci al Protection a nd Integration
(Directorate E) of the European Commission in Brussels and a Visiting Professor in European
Social Sec urity Law at the Rijk suniversiteit Gent; e-mai l: Robertus.Cornel issen@ec.europa.eu . is
presentation re ec ts the personal view s of the author.
Rob Cornelissen
10 Intersentia
1. INTRODUCTION
is conference marks the occasion of t he 50th anniversary of European social security
coordination. On 25 September 1958, Regulation 31 was adopted by the Council. Its
implementing regulation − Regulation 42 − was adopted a couple of months later.
Both regulations came into e ect on 1 January 1959. e fact that the Regulations
coordinating the va rious social secur ity schemes of the Member States came into force
almost 10 years before the realisation of free movement of workers as envisaged by
Article 48 of the Treaty (currently Ar ticle 39 EC) can only be explained by the special
history of Regulat ion 3. e rst part of my presentation wi ll deal with this issue.
Under the rules of the Treaty, the power of the legislator in determining the
content of the coordination system is not unlim ited. It has to respect the objectives of
the Regulations as identi ed by the Court. e objectives of the Regulations will be
the subject of the second part of my contribution.
In comparison with ot her international instruments, t he Community Regulations
on social security constitute a unique coordination system. e Court of Justice has
the power to decide on the interpretation and even the validity of the provisions
laid down in these Regulations. e abundant case law of the Court has played an
essential role in the de velopment of the coordination ru les set up in the coordination
regulations. In fact , these Regulations have o en been mod i ed in order to take into
account, if not to ‘translate’, the case law of t he Court.
Sometimes, however, the Regulations were modi ed in order to take away the
e ects of the Court’s case law.3 is has, obviously, been possible only in those cases
where the interpretation of the Cour t was not based directly on the Treaty.
1 Regulation (EEC) No. 3 of 25 Se ptember 1958, OJ No. 30 of 16 December 1958.
2 Regulation (EEC) No. 4 of 3 Dec ember 1958, OJ No. 30 of 16 December 1958.
3 Some examples are:
– e extensive discretiona ry power of the compe tent institution, l aid down in Article 22(2) of
Regulation 1408/71 a nd maintained in A rticle 20(2) of Regulation 883/0 4, to refuse planned cro ss-
border health ca re, where the treatment in question i s not among the bene ts provided for by its
legislation, is a re action to the case l aw of the Court (judg ment of 16 March 1978, case 117/77, Pierik)
on the old text of the prov ision.
– Article 45(6) has been in serted into Regulat ion 1408/71 (by Regulation 2195/91 of 25 June 1991)
as a direct resu lt of the Court's jurispr udence (judgment of 29 June 1988, case 5 8/87, Rebmann) on
the old text of the Re gulation, in order to guara ntee that periods during wh ich a frontier worker
has received unemployment bene ts from his St ate of residence shal l be taken into account, for
the entitlement a nd calculation of his pension rig hts, by this State rather th an by the State of last
employment. is rule shall continue to apply u nder the new Regu lation 883/04, in accord ance with
Article 11(3)(c).
– Regulation 1247/92 intr oduced a separate coordin ation system for the ‘special non- contributory
bene ts’ i n order to avoid their exportabil ity, which would have resulted from the c ase law of the
Court bringing such bene ts within the scope of the Regulation if they were linked to one of the
risks list ed in Article 4(1) of Regulation 1408/ 71.
50 Years of European So cial Securit y Coordination
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 11
is contribution does not have the pretention of drawing a complete picture of
all the developments in the coordination system during the last 50 years. In fact, it
is impossible to deal with all the developments since 1958. Regulation 3 has been
modi ed 14 times. Its successor, Regu lation 1408/71, has been modi ed 39 t imes. e
new Regulation 883/04 will soon be modi ed, even before it becomes applicable.4 In
this contribution I wi ll focus on the major developments in the following elds:
– the personal scope of the coordi nation rules;
– the inclusion of third countr y nationals in the coordination system;
– the material scope;
– the reinforcement of the principle of equal treat ment;
– the development of the geographical application of t he coordination sy stem from
6 to 27 Member States and more;
– the growing impac t of Treaty provisions governi ng other elds of Commun ity law
on the coordination system;
– the growing involvement of the European Council in the coordination system;
and
– the legal basis of the coordi nation rules.
I will not discuss the special non-contributory bene ts and the rules that determine
the applicable legislation, however importa nt these issue s may be, since t hey are par t
of contributions by others in this is sue.
2. THE CONCEPTION AND BIRTH OF A TRULY EUROPEAN
COORDINATION OF SOCIAL SECURITY SYSTEMS
Article 69 of the Treaty of Paris e stablishing the Europea n Coal and Steel Community
(ECSC) provided for free movement of workers in the two industr ies covered by this
treaty. In part 4 of the Ar ticle, social security was desc ribed as a factor that must not
inhibit labour mobility in the coal and steel industries. In 1953, the High Authority
– Regulation 6 47/2005 ended the consequences of t he Stinco judgment (of 24 September 1998, cas e
C-132/96) by stipulating t hat the provisions of Art icle 10 and Title III of Regul ation 1408/71 do not
apply to the ‘special non- contributory bene ts’.
– e new Regu lation 883/04 has excluded advances of m aintenance payments from the m aterial
scope of the Regu lation as a reaction to the case law of t he Court (judgments of 15 March 2001,
case C-85/99, O ermanns and of 5 February 20 02, case C-255/99, Humer) accordi ng to which such
advances should b e considered as family b ene ts in the sense of Regu lation 1408/71.
4 Commission proposal a imed at determi ning the content of An nex XI and amend ing several
provisions of Regulation 883/04 (COM (2006) 7 nal; Commis sion proposal aimed at determining
the content of Annexes I I and X and amending al l the annexes of Regulat ion 883/04 (COM (2007)
376 na l.
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