The Charter and Social Security Rights: Time to Stand and Deliver?
| Published date | 01 March 2022 |
| Date | 01 March 2022 |
| Author | Jaan Paju |
| DOI | 10.1177/13882627221075643 |
| Subject Matter | Articles |
The Charter and Social Security
Rights: Time to Stand and
Deliver?
Jaan Paju
Faculty of Law, Stockholm University, Stockholm, Sweden
Abstract
From a standpoint of fundamental rights, the European Court of Justice (ECJ) can be considered as
having taken a restrictive approach to social security ever since it ruled in case C-333/13, Dano.
The ECJ ruled that the Charter of Fundamental Rights of the European Union does not apply
because Regulation 883/2004 only coordinates member states’social security systems. This has
since been raised by national courts in seven further preliminary rulings: case C-647/13,
Melchior; case C-408/14, Wojciechowski; case C-284/15, M; case C-89/16, Szoja; case C-447/18,
UB; case C-243/19, A; and case C-243/19, CG. In the light of these rulings, this article provides
an analysis of social security from a rights perspective. This includes considering and analysing
the inherent limitations of the Charter in view of the principle of conferral. The author asks:
the Charter and social security rights –time to stand and deliver? If so: deliver what? If not:
why not?
Keywords
the Charter, free movement of persons, fundamental rights, residency, social security, Union
citizenship, welfare
1. Introduction
National social security systems differ regarding both their material and personal scope, depending
on the historical and political development of the respective states. Work, citizenship, and/or resi-
dence form the basis for citizens’rights to receive social security benefits, as discussed by Pennings
(2015: 4 f). In this context, Pieters (2006: 21 ff) speaks of circles of solidarity, whereby those who
fall within the circles are covered by social security and those who fall outside them are not. Since
Corresponding author:
Jaan Paju, Faculty of Law, Stockholm University, Stockholm, Sweden.
E-mail: jaan.paju@juridicum.su.se
Article
European Journal of Social Security
2022, Vol. 24(1) 21–39
© The Author(s) 2022
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/13882627221075643
journals.sagepub.com/home/ejs
1958, the aim of European Union social security coordination has been to expand such circles of
territorial solidarity to include migrating workers in order to promote the internal market (see
Articles 45 and 48 of the Treaty on the Functioning of the European Union); but, with the regulation
currently in force (Regulation 883/2004)
1
, the aim is also to expand the circles to include migrating
Union citizens who are not economically active. The latter ambition has, however, grounded to a
halt, as the European Court of Justice (the ECJ) during the 2010s has largely ruled that member
states can restrict their social security solidarity circles to migrating economically active Union citi-
zens only. Thus, 2022 sees a situation where migrating economically inactive Union citizens can
find themselves left out in the cold by their host states.
In the light of this, the question posed in this article is: can a fundamental right to social security
based on the Charter of Fundamental Rights of the European Union (the Charter)
2
be claimed by all
those who live within the member states of the European Union? If so, then this would indicate that
solidarity circles are expanded based on a fundamental right, and not on a right of free movement. In
Section 2, the article provides some background on the currently narrow understanding of the scope
of Regulation 883/2004. Next, in Section 3, the article discusses social security as a (possible) fun-
damental right. This includes an analysis of the applicability of the Charter, in particular: Article
34(1), which concerns social security as such; and Article 34(2), which establishes a right to
social security in connection with cross-border movement. Section 3 also includes an analysis of
fundamental rights - such as human dignity, the right to non-discrimination on grounds of religion,
and the right to family life - as possible routes to a fundamental right to social security. Based on the
findings, Section 4 concludes the article with a discussion of whether there is sufficient competence
for compelling member states to provide fundamental social security rights.
2. The Scope of Regulation 883/2004 and Shrinking Solidarity Circles
When the European Economic Community (as it was then known) was established in 1958, its
focus was on promoting the free movement of workers. Barnard talks of an Economic
Community where workers were seen as ‘factors of production’that had to move from regions
where work was hard to find to other regions where workers were needed, which, in a longer per-
spective, would lead to greater prosperity for all (Barnard, 2019: 200; on the idea of prosperity, see
also Craig, 2011: 14 ff). Such free movement was promoted by Regulation 3/58.
3
This regulation
coordinated the social security systems of the member states and expanded the circles of territorial
solidarity to include migrating workers by establishing the working state as the competent state,
requiring equal treatment of migrating workers, and enabling export as well as the aggregation
of social security benefits already earned (on coordination for dismantling territoriality, see
Pennings, 2015: 4 ff; Paju, 2017: 12 ff; on coordination before harmonisation, see Watson 2014:
36 f; for a thorough historical overview on the development of Community coordination from
1958 onwards, see Cornelissen, 2009).
As of 2022, the situation remains the same. Pennings (2015: 3 f) points out that the main focus of
the current instrument, Regulation 883/2004, is to promote the free movement of workers, since
1. Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of
social security systems [2004] OJ L 166.
2. Charter of Fundamental Rights of the European Union [2012] OJ C 326.
3. Règlement n° 3 concernant la sécurité sociale des travailleurs migrants [1958] OJ No 30.
22 European Journal of Social Security 24(1)
To continue reading
Request your trial