The judicial finetuning of the EU rules determining the applicable social security legislation
| Published date | 01 February 2022 |
| DOI | 10.1177/1023263X211058394 |
| Author | Anne Pieter van der Mei,Eva van Ooij |
| Date | 01 February 2022 |
| Subject Matter | Case Notes |
The judicial finetuning of the
EU rules determining the
applicable social security
legislation
Anne Pieter van der Mei* and Eva van Ooij **
Abstract
The conflict rules enshrined in Regulation 883/2004 on the coordination of social security were
created six decades ago to offer those who exercise free movement rights ‘constant social security
protection’. The main idea was to ensure that beneficiaries are always subject to the legislation of
a single Member State and to indicate which Member State that was. Because beneficiaries were
above all ‘standard’employees working on a full-time basis for an indefinite period of time, it was
initially quite easy to determine the ‘competent’Member State. The processes of flexibilization,
digitalization, enlargement and globalization, however, have posed new and often formidable chal-
lenges. In today’s dynamic labour market it is often particularly difficult to identify the applicable
legislation, issues arise as regards swift and frequent switches in the applicable legislation, increased
worker and company mobility may affect social security rights and problems have arisen because of
the possible fraudulent use of the rules determining the applicable legislation. This contribution
analyses some of the recent CJEU case law on topics like working in to or more Member
States, posting, abuse and fraud, employment and/or residence outside the EU and gaps in in social
security protection by EU workers. The overarching question is how, in the view of the CJEU, the
classic conflict rules are to be applied so as to ensure cross-border movers continue to enjoy con-
stant social security protection.
Keywords
Regulation 883/2004, simultaneous working, posting, employment and/or residence outside the
EU, abuse and fraud, gaps in social protection
*
Department of Public Law, Faculty of Law, Maastricht University, Maastricht, Netherlands
**
Department of International & European Law, Faculty of Law, Maastricht University, Maastricht, Netherlands
Corresponding author:
E. van Ooij, Department of International & European Law, Faculty of Law, Maastricht University, Bouillonstraat 1-3,
Maastricht 6211 LH, Netherlands.
E-mail: eva.vanooij@maastrichtuniversity.nl
Case Note
Maastricht Journal of European and
Comparative Law
2022, Vol. 29(1) 132–155
© The Author(s) 2021
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1023263X211058394
maastrichtjournal.sagepub.com
1. Introduction
To facilitate the cross-border movement of persons within the European Union (EU) the EU legis-
lature has set in place an extensive regime for the coordination of social security systems. The hard
core of this regime, which is governed by Regulations 883/2004
1
and 987/2009,
2
consists of the
rules determining the applicable legislation. These are conflicts rules that avoid a person who
moves from one Member State to another ending up in a situation in which no legislation is applic-
able to him/her at all (negative conflict of law) or one in which the legislation of two or more
Member States applies (positive conflict of law). The goal is to ensure that a person who moves
between Member States is, at any point in time and in whatever circumstances s/he may find
her/himself in, subject to the social security legislation of a single Member State (‘single State
rule’).
3
Regulation 883/2004 prescribes which Member State must apply its legislation in a given cross-
border situation. The leading rule is the lex loci laboris: the ‘competent State’is the one in whose
territory workers or self-employed persons pursue their activities, regardless of where they reside
(Article 11(3)(a) of Regulation 883/2004). Some exceptions exist to the State of employment prin-
ciple. First, posted workers remain covered by the legislation of the Member State from which they
are sent (Article 12). Second, persons who pursue activities in more than one Member State are
subject to the legislation of either the Member State in whose territory they reside or the one
where their employer is based (Article 13).
The application of these rules appears to be increasingly complex. The rules date back to the
1960s when workers usually moved to other Member States to work on a full-time basis and for
an indefinite period for a single employer. In such cases it was, and still is, quite easy to determine
the Member State of employment and thus the applicable social security legislation. Today, that is
often far more difficult. Various developments account for this.
Afirst one concerns the flexibilization and digitalization of the labour market. In the wake of
these processes, new ‘atypical’forms of work have merged.
4
Part-time work, fixed-term work,
on-call contracts, employment agency work, platform-work, teleworking etc. have offered new
work opportunities not only for sedentary workers but also for cross-border workers. Today, it is
perfectly possible that an IT specialist living in the Netherlands works a few days a week from
the office of his German employer and the other days from home to complete assignments for a
client based in Spain. A professor of the University of Lisbon may also hold a position at the
European University Institute in Florence while doing empirical fieldwork in Cyprus and Malta.
In such situations, what is the competent State?
A second development that has made the application of the rules determining the competent
State more complex involves the enlargement of the Union. The accession of new Member
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, p. 1.
2. Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the
procedure for implementing Regulation 883/2004 (EC), [2009] OJ L 284.
3. Article11(1) Reg. 883/2004; Case C-430/15 Secretary of State for Work and Pensions v. Tolley (deceased, acting in the
proceedings by her personal representative), EU:C:2017/74, para. 58.
4. Eurofound, New Forms of Employment (Publications Office of the European Union, 2015); P. Schoukens and A. Barrio,
‘The Changing Concept Of Work: When Does Typical Work Become Atypical?’,8European Labour Law Journal
(2017), p. 303; P. Schoukens, ‘Social Security Coordination and Non-Standard Forms of (Self)employment’,1Revue
Belge de Sécurité Social (2019), p. 81.
van der Mei and van Ooij 133
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