Parental Benefits in the Coordination Regulation: (Where) Do They Fit in? The Swedish Example
| Published date | 01 June 2014 |
| DOI | 10.1177/138826271401600202 |
| Date | 01 June 2014 |
| Subject Matter | Article |
COORDINATION REGULATION:
(WHERE) DO THEY FIT IN?
THE SWEDISH EXAMPLE
Emma Holm*
Abstract
In this article the issue of coordination of parental benefits in cross-border situations,
with the Swedish example in focus, is analysed. There are no specific provisions in the
Coordination Regulations concerning these benefits.
At the national level, parental benefits can be a mix between individual, income-
related benefits (similar to maternity/paternity benefits) and family-oriented,
residence-based family benefits. The classification of a benefit is of importance in
solving issues like aggregation of insurance periods, exportability and the overlapping
of benefits, and the result may differ depending on which classification is made. The
situation of the family members may also be affected.
Sweden has had particular problems relating to the coordination of parental benefits,
which can be partly explained by the fact that Swedish parental benefit has been
classified as a family benefit for the purposes of the Coordination Regulations. The
problems of coordination have been raised in cases referred to the CJEU and in recent
developments in national law. The Swedish example is also used in this article to raise
some general questions in the area of maternity/paternity benefits and family benefits.
Keywords: aggregation; classification; exportability; family benefits; family members;
maternity/paternity benefits
1. INTRODUCTION
Economic support to families at the national level consists of different kinds of
benefits. There are benefits aimed at covering loss of income of the mother and father
*
Emma Holm, Doctor of Law, is a researcher in the Faculty of Law at Lund University in Sweden.
Address: Faculty of Law, Lund University, P.O. Box 207, 221 00 Lund, Sweden; phone: +46 46 222
1101; e-mail: Emma.Holm@jur.lu.se.
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Intersentia
Parental Benefits in the Coordination Regulation: (Where) Do They Fit In?
due to the birth of a child, as well as benefits aimed at covering the general costs
of having children; in the form of a flat-rate child benefit or benefits related to the
number/age of the children and/or income of the family. There may also be benefits
that aim to facilitate the reconciliation of family and work in the longer term.1
The rules on the coordination of social security benefits in Regulation 883/20042
are intended to ensure that persons who exercise the right to free movement do not lose
their social security protection. Work incapacity due to childbirth and the increased
costs related to having a family are ‘risks’ covered by the Regulation. Maternity
benefits and family benefits, such as general child benefit, are examples of benefits that
need to be coordinated in a cross-border situation.3 As opposed to its predecessor,
Regulation 1408/71,4 Regulation 883/2004 also covers paternity benefits, as a result
of developments in the legislation of the Member States. These are specific benefits
granted only to fathers in relation to a child’s birth.5
The Regulation contains no specific provisions for parental benefits, i.e. benefits
that may be granted to either parent who takes care of a child, and may usually be
claimed over a longer period of time. This means that in order to fit into the Regulation,
benefits have to be classified as either maternity/paternity benefits or family benefits.
The interpretation of the term ‘family benefit’ has been difficult to make, and several
cases from the Court of Justice of the European Union (CJEU) have dealt with this
issue.6 How a national benefit is classified when applying the Regulation may lead to
different results regarding, for example, the right of family members to claim benefits,
the right to export benefits and the issue of overlapping benefits.
In this article the Swedish example will be used to explain some issues related to
the coordination of parental benefits.7 Swedish parental insurance was introduced as
early as the 1970s, in order to help mothers as well as fathers to stay at home and care
for a child, while being compensated for loss of income. Over the years, the insurance
has been extended and now consists of 480 days of benefit to be shared between the
parents according to their own choice until the child is eight years old.8 One part is
a work-based benefit connected to the wage (sickness benefit level) of the individual
1
See Missoc, Comparative Tables on Social Protection, 1 July 2013, available at www.missoc.org.
2
Regulation 883/2004 of 29 April 2004 on the coordination of social security systems, OJ L 166/1 of
30 April 2004.
3
Chapter 1 and Chapter 7 of Regulation 883/2004.
4
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.
5
Paragraph 19 of the Preamble to Regulation 883/2004.
6
See, for example, Case C-78/91 Hughes [1992] ECR I-4839; Joined Cases C-245/94 and C-213/94
Hoever och Zachow [1996] ECR I-4895; Case C-333/00 Maaheimo [2002] ECR I-10087; Case
C-275/96 Kuusijärvi [1998] ECR I-3419.
7
See also Holm (2011).
8
Two months are, however, reserved for the other parent in order to promote fathers’ withdrawal of
parental benefit.
European Journal of Social Security, Volume 16 (2014), No. 2
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Emma Holm
parent. The granting of this benefit presupposes that the parent was insured for
sickness benefit for 240 days prior to the birth of the child.9 The other part is a flat-rate
benefit for non-economically-active parents.10 There are no specific maternity benefits
in Swedish law, although the first 29 days of parental benefits are reserved for the
mother, irrespective of whether she takes care of the child.11
Since Sweden joined the EU, there have been several cases in national administrative
courts concerning parental benefits in relation to the Coordination Regulations. Three
main situations can be distinguished in this case law. Firstly, migrating persons’ rights
to continued parental benefits when they leave Sweden for another Member State,
which raises the issues of applicable legislation and exportability. Secondly, migrating
persons’ rights to parental benefits when they move to Sweden from another Member
State, where the principles of aggregation, assimilation and equal treatment are at
issue. Thirdly, situations relating to the situation of the family, derived rights and
overlapping of benefits. Four cases have been referred to the CJEU by the national
administrative courts,12 which must be considered in light of the fact that very few
cases have been referred by Swedish courts to Luxembourg.13 This may give some clue
as to the complexity of this issue from a Swedish point of view. In this article, the three
above-mentioned situations will be described and analysed from the perspective of
CJEU case law.
It is argued, in this article, that the classification of the Swedish parental benefit
as a family benefit has been one of the main reasons for the difficulties in applying
EU law to this benefit. The overall question to be analysed is how national parental
benefits that are construed as individual, income-replacement benefits fit into the
system of the Coordination Regulations.
2. FREE MOVEMENT OF FAMILIES: TYPES OF
BENEFITS FALLING WITHIN THE COORDINATION
REGULATIONS
A family14 may have ties to more than one Member State for different reasons. A
couple expecting a child may choose to move back to their country of origin to raise
their family or a spouse may follow his or her partner to another Member State while
9
This applies for entitlement to the first 180 days of income-related benefit. For the remaining days of
income-related benefit, it is sufficient to be employed in Sweden.
10
The insurance also consists of 90 days of flat-rate benefit, irrespective of employment.
11
Chapter 12 of the Swedish Social Security Code.
12
Case C-275/96 Kuusijärvi; Case C-137/04 Rockler [2006] ECR I-1441; Case C-185/04 Öberg [2006]
ECR I-1453; Judgment of 15 December 2011 in Case C-257/10 Bergström [2011] ECR I-3227.
13
See also Groussot et al. (2009).
14
The definition of the term ‘family’ may itself be problematic, but will not be further examined in
this article. See Article 1 i) in Regulation 883/2004. See, for example, McGlynnn (2000: 223ff).
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Parental Benefits in the Coordination Regulation: (Where) Do They Fit In?
on parental leave. A family with young children may move to a new Member State.
There is also the case where the parents of a child work in different Member States
and the family resides in one of these states, or even in a third Member State. In these
situations, the right to maternity benefits, paternity benefits and family benefits may
be invoked, and questions of applicable legislation, aggregation of insurance periods,
exportability and possible overlapping of benefits, must be answered. In order to do
this, the national benefit at issue must be classified within the scope of the Regulation.
Social security benefits, such as sickness benefits, unemployment benefits and old-
age pensions are normally tied to the income loss of an individual. This is also the case
for maternity/paternity benefits, which are designed to cover the individual’s loss of
income as a result of taking care of a...
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