Coordination of Unemployment Benefits under Regulation 883/2004
| DOI | 10.1177/138826270901100109 |
| Author | Frans Pennings |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 177
COORDINATION OF UNEMPLOYMENT
BENEFITS UNDER REGULATION 883/2004
F P*
Abstract
e coordination of unemployment bene ts is a politica lly sensitive issue. Questions ,
which have been raised in the past years, are, among others: is the rule that the
State of residence is responsible for unemployment bene ts for frontier workers
acceptable? How can atypical f rontier workers be dealt with? Is the division of costs
between the State of employment and the State of resi dence adequate? Can the period
of paying bene t be prolonged beyond the present three month period and can the
radical sanction in the case of late return (total loss of remaining bene t rights) be
so ened? ese issu es have also been d ealt with when dra ing Regulation 883/2004.
is contribut ion makes an analysis of the solutions found.
Keywords: unemployment bene t s; frontier workers; coordination; export; reintegration
1. INTRODUCTION
Unemployment bene ts constitute a special phenomenon for coordination, which is
caused by the close link that exists in all unemployment bene t systems between the
right to bene t and the obligation for the claimant to do his utmost to nd work.
Coordin ation rules mus t not only loosen t his link, but as we will s ee below, they must
also allow the State that pays unemployment bene t to be able to supervise these
obligations.
A second characteristic of unemployment bene ts is that they o en, if not always,
require periods of insu rance or employment for bene t entit lement. Such requirements
are not absolutely exclusive for unemployment bene ts, but they are much stronger
* Professor of Labour L aw and Social Sec urity at Utrecht Universit y, Professor of International S ocial
Security L aw at Tilburg University and Joi nt Editor of the Journal .
Frans Penning s
178 Intersentia
for these types of bene ts than for others; the coordination (i.e. aggregation) rules
have to take special account of the se requirements.
ese two charac teristics explain, to a large extent, the specia l coordination rules
for unemployment bene ts . At present, these rules are found in C hapter 6 of Regulation
1408/711 (henceforth the present regul ation) a nd are also part of the chapter with t he
same number of Regulation 883/20042 (henceforth the new regulation), which will
replace Regulation 1408/71 in the near f uture.
In view of the characteristics of unemployment bene ts mentioned supra, three
articles of Regulation 883/2004, which lay down important general coordination
principles, are not applicable to unemployment bene ts. e se are the following:
– Article 5: thi s article requires, among other th ings, that if legislation of a Member
State attributes legal e ects to the occurrence of certain facts or events, facts or
events occurring i n any Member State, these have to be treated in the same way;
– Article 6: this article gives a general provision on the aggregation of periods; a
State which makes the right to bene t conditional upon completion of periods
of insurance, employment, self-employment or residence shall also take these
periods into account when completed in another Member St ate;
– Article 7: this ar ticle gives a general waiver of residence rules.
ese articles all start with the phrase ‘unless provided otherwise by this Regulation’,
which allows for the deviat ions for unemployment bene t, made in Chapter 6, which
are discussed be low.
e Commission’s proposal for a simpli cation and moder nisation of Regulation
1408/71, which was published in 1998 and was intended as the dra of the new
regulation,3 followed an inclination towards unemployment bene ts radically
di erent from the present and the new regulation. e proposal was not, however,
adopted by the Council, and inste ad Regulation 883/2004 reached the O cial Journal
of legislation. In th is article I will a nalyse the di erences bet ween Regulation 1408/71,
Regulation 883/2004 and, w here relevant, the Proposal.
I mentioned that the Regulations are based, to a large extent, on the same
principles. ere is, however, one important di erence between Regulation 883/2004
and Regulation 1408/71. When in 1989 the personal scope of Reg ulation 1408/71 was
extended to self-employed persons, this extension was, with one exception (i.e. the
export of bene t in Article 69), not applied to unemployment bene ts. As a result,
a self-employed person, who consecutively worked in two Member States, could not
1 OJ L. 149 of 5 July 1971, as amended.
2 OJ L 200 of 7 June 2004.
3 COM (1998) 779, OJ C 38 of 12 February 1999, p. 10. See on the preparator y process Eichenhofer
(2000: 229); Pieters (1999); Schouk ens (1997) and Schulte (2007: 9 et seq).
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