Coordination of classic and specific family benefits – challenges and proposed solutions
| DOI | 10.1177/1388262720927494 |
| Author | Emma Holm |
| Date | 01 June 2020 |
| Published date | 01 June 2020 |
| Subject Matter | Articles |
Article
Coordination of classic and
specific family benefits –
challenges and
proposed solutions
Emma Holm
Independent Researcher
Abstract
Family benefits in Regulation 883/2004 comprise a broad palette of benefits intended to meet
family expenses. The coordination rules on family benefits are based on the idea that it is
irrelevant who the recipient of the benefit is, assuming that the benefit is not related to
individual rights. Rather, the family/child is the focus. The children of migrant Union citizens
are to receive the highest possible benefits from the Member States involved. This is achieved
through the principle of exportability from the competent Member State to family members
residing in another Member State, as well as through a complex system of overlapping rules
for determining primary and secondary responsibility. The CJEU has interpreted the notion of
a family benefit in a broad way, which includes income-based benefits paid during child-rearing
periods. Over the years, it has been acknowledged that this creates coordination problems.
To this end, specific coordination rules have been proposed regarding family benefits that are
intended to replace income during periods of child-raising. These rules clarify that such
benefits, although they are family benefits, are individual rights and are to be coordinated in a
specific way. This article describes and analyses the challenges related to coordinating family
benefits, with a particular focus on benefits related to child-rearing, in the light of the pro-
posed amendments.
Keywords
Social security, Regulation 883/2004, family benefits, classification of benefits, anti-overlapping
Corresponding author:
Emma Holm, Doctor of Laws, The Swedish Social Insurance Agency (Fo
¨rsa
¨kringskassan), Stockholm, Sweden.
E-mail: emmaholm1977@gmail.com
European Journal of Social Security
2020, Vol. 22(2) 196–211
ªThe Author(s) 2020
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DOI: 10.1177/1388262720927494
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1. Introduction
Family benefits in Regulation 883/2004
1
comprise a broad palette of benefits, aimed at
meeting family expenses. According to the CJEU, even benefits that aim to compensate loss
of income due to child-rearing are covered by the definition in the Regulation.
2
Over the
years, it has been acknowledged that this broad definition of family benefits creates coordina-
tion problems. Benefits based on different normative solutions with partly different aims are
not easily coordinated. To this end, specific coordination rules have been proposed regar ding
family benefits that are intended to replace income during periods of child-raising.
3
This
article analyses the different problems related to coordinating family benefits, with a partic-
ular focus on income-related benefits related to child-rearing, in order to get a deeper under-
standing of the need for reform in this area. The case law of the CJEU constitutes the basis of
this analysis. The article then discusses the extent to which the proposed amendments to the
Regulation solve these issues and what potential problems remain.
2. Characteristics of family benefits – The family in focus
2.1 Derived rights and exportability
As is well known, the Regulation only covers national social security benefits included within one
of the different risks stated in Article 3 of the Regulation.
4
The coordination rules, such as those
covering the exportability of benefits, may differ depending on the benefit. The classification of a
benefit is therefore crucial.
Family members are covered by the personal scope of the Regulation.
5
The definition of who is
a family member is first and foremost up to the applicable national legislation to decide. Family
members, however, cannot rely on the Regulation as a whole. The CJEU has gradually expanded
their rights from only being able to claim derived rights, such as survivors’ pensions, to being
able to invoke the Regulation except for the provisions that apply only to workers, such as the
provisions on unemployment benefits.
6,7
Many benefits covered by the Regulation, i.e. invalidity benefit or maternity/paternity benefits,
focus on the employed person.
8
Income related benefits are t ied to the individual’s need for
compensation during periods of incapacity of work. The coordination rules on family benefits are
instead focused on the situation of the family as a whole. This became apparent when the CJEU
interpreted the provisions on the exportability of family benefits in its early case law.
9
It should be
acknowledged that the provisions on the exportability of family benefits have been debated since
1. Regulation 883/2004 of 29 April 2004 on the coordination of social security systems, OJ L 166/1 of 30 April 2004.
2. Joined cases C-245/94 and C-312//94 Hoever and Zachow, EU:C:1996:379.
3. COM (2016) 815 Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC)
No 883/2004 and Regulation (EC) No 987/2009.
4. Jorens and van Overmeiren (2009: 56f).
5. Article 1 i) of Regulation 883/2004. The problems related to defining who is a family member has become more
problematic, as new forms of family emerges. See for example Spiegel et al. (2015: 15f).
6. Cornelissen (2009: 24).
7. C-308/93 Cabanis-Issarte, EU:C:1996:169.
8. Devetzi (2009: 208).
9. Joined cases C-245/9 4 and C-312//94, Hoever and Zachow.
Holm 197
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