Special Non-Contributory Benefits in Regulation 1408/71, Regulation 883/2004 and the Case Law of the ECJ
| Published date | 01 March 2009 |
| DOI | 10.1177/138826270901100111 |
| Author | Herwig Verschueren |
| Date | 01 March 2009 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 217
SPECIAL NONCONTRIBUTORY BENEFITS
IN REGULATION 1408/71, REGULATION
883/2004 AND THE CASE LAW OF THE ECJ
H V*
Abstract
is paper examines the provisions in Regulation 883/2004 on special non-
contributory bene ts and compares them with those of Regulation 1408/71. First
the separate coordination regime that has been introduced for the so-called special
non-contributory bene ts is described. e status of these bene ts has been under
discussion for more than 30 years now, both at the level of the European leg islature
and of the European Court of Justice (ECJ). e issues raised concer n the scope of the
EC coordination system and the application of its general principles, in particular
the export of bene ts. Further to the case law of the ECJ, the Community legislator
intervened in 1992 for the rst time by introducing a special coordination regime
for these bene ts in Regulation 1408/71. Due to developments in the ECJ’s case law,
these provisions had to be thoroughly redra ed in the new Regulation 883/2004.
i s matter was so urgent that these amendments had already bee n integrated in the
current applicable provi sions of Regulation 1408/71. e history of these discu ssions
is brie y highlighted, and th en the speci c coordination regime that ha s been set up
in Regulations 883/2004 and 1408/71 is explored. Finally, the paper examines the
very recent discussion on thi s regime before the ECJ, challenging again the legislative
agreement.
Keywords: EU social security coordination; Regulation 883/2004; special non-
contributory bene t s; European Court of Justice
* Herwig Verschueren is Profe ssor of International and Europea n Labour and Social Secu rity Law
at the University of Ant werp and the Free Un iversity of Bruss els; e-mail: He rwig.Verschueren@
skynet.be.
Herwig Verschueren
218 Intersentia
1. REGULATION 1408/71 AND SPECIAL NON
CONTRIBUTORY BENEFITS
1.1. THE ORIGINS OF THE DISCUSSION ON THE STATUS OF
SPECIAL NONCONTRIBUTORY BENEFITS
One of the most important principles of European social security coordination is the
waiving of residency clause s, in other words, the right to expor t bene ts. is principle
is enshrined both in Article 10 of Regulation 1408/71 and Article 7 of Regulation
883/2004. For old-age and invalid ity pensions, the export principle is rarely di sputed.
For other bene ts, however, export remains controversial1 and even Community law
itself subjects export to exceptions.2
Member States are reluctant to pay bene ts to per sons not residing in their territory
and national social security systems are still built on the principle of territoriality.
is is ce rtainly the case for non-contributory, tax- nanced bene ts, including social
assistance and other m inimum subsistence bene ts , the level of which is determined
by the cost of living in the Member State where they are paid. Since Regulation
1408/71 is not applicable to socia l assistance,3 the export principle does not apply to
these bene ts.
e Eu ropean Court of Justice (ECJ) has been confronted w ith questions since the
1970s about which bene ts fall under this exception for social assistance and which
minimum subsistence bene t s do not. If they do not, they are covered by the provi sions
of the Regulation, in pa rticular t he rules for determination of the legi slation applicable,
the principle of equal treatment a nd the exportability of bene ts. At the origin of th is
discussion lies the fact that there is a large variety of minimum subsistence bene t
schemes and traditiona l assistance bene ts a re ju st a su bcat egor y. Membe r Stat es ha ve
developed bene ts which are half way between traditional social security and social
assistance. ese bene ts have characteristics of social security, in that they create
legally-de ned rights connected to a social security bene t, and they also have links
with social assistance, in the sense that they are not dependent on periods of work
or contributions and that they are intended to relieve a clear nancial need. Such
bene ts were called special non-contributory bene ts of a mixed kind. Examples of
such bene ts are supplements to pensions and special bene ts for disabled or invalid
persons.
1 For instance for fami ly bene ts see Case 41/84, Pinna [1986] ECR 1. See more recently t he discussion
in Case C-212/05, Hartma nn [2007] ECR I-6303 and Case C-213/05, Geven [2007] ECR I-6347.
2 Such as for unemployment bene ts: Article 69 of Regul ation 1408/71 and Article 64 of Reg ulation
883/2004. See a lso Case C-40 6/04, De Cuyper [2006] ECR I-6947.
3 See Article 4(4) of Regulat ion 1408/71.
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