The “other” EU Security: Social Protection
| Author | Paul Minderhoud |
| DOI | 10.1177/138826270600800402 |
| Published date | 01 December 2006 |
| Date | 01 December 2006 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 8 (2006), No. 4 361
THE “OTHER” EU SECURITY:
SOCIAL PROTECTION
P M*
Abstract
is paper focuses on the issue of social security in the EU as a di erent kind of
security. It addresses four topics: the reluctanc e of the Member States to give up their
legislative power to harmonise their social security systems within the European
Union; the use of social security as a means of excluding unwanted immigrants;
the social security protection of TCNs in EU legislation; and the possibilities of
Article 14 European Convention of Human Rights, which prohibits discrimination,
securing the entitlement to soci al security rights of TCNs. It concludes that the state’s
duty to provide security i s no longer an exclusive privilege for own citizen s and that
the changing legal framework of citizenship in the European Union, the European
Convention of Human Rights and the acquisition of EU residence rights by TCNs all
challenge the sovereignty arg ument used by the individual states.
1. INTRODUCTION
is paper focuses on the issue of social security in the EU as a di erent kind of
security. One of the core obligat ions of the State is to provide security for its citizen s.
is includes social sec urity. On several security i ssues we can see a tendency towards
Europeanisation, challenging the sovereignty of the state. Regarding social security,
however, the Member States of the EU are not will ing to give up their sovereignty over
legislative power. Member States use this sovereignty to de ne which migrants are
unwanted and therefore excluded from access to s ocial security. On the other ha nd the
power of the Member States is not absolute any more. ey have to take into account
* Senior Researcher, Centre for Migration Law, Radboud Un iversity, PO Box 9102, 6500 HC,
Nijmegen, e Netherland s. Tel: +31 24 3612799. E-mail: p.minderhoud@jur.ru.n l. is article was
original ly presented at the CHALLENGE con ference on Migration, Asylum and S ecurity, Malta,
9–10 December 2005.
Paul Minderhoud
362 Intersentia
EU legislation protecti ng the social securit y rights of TCNs (TCNs) and human rights
instruments such a s the European Convention of Human Rights.
2. RELUCTANCE TO HARMONIZE NATIONAL SOCIAL
SECURITY SYSTEMS
EU policy on social s ecurity has always been hig hly ambivalent. On the one hand the
EU has tried hard to gua rantee social security protect ion in case of interference with
the free movement of workers, on the other hand Member States have never wanted
to lose control of this issue. e result of this ambivalent position is that all Member
States still have their own national social security system, which they have adapted
only to ensure that the f ree movement of workers is not hindered.
Only the protection of the social security rights of cross border migrant workers
is regulated at EU level. Where it concerns the internal situation in a country itself,
the Member States are not wil ling to harmonize their socia l secur ity syst ems and do
not want to lose their sovereignty over leg islative power in the area of social secur ity.
Negotiations on this topic within the European Convention, leading to the EU
Constitutional Treaty, highlighted the reluctant attitude expressed by most member
states.1 e writing of t he Constitution was a reveali ng moment for the EU regard ing
the concerns of sovereignty.
In the negotiations regarding the texts of the Convention a working group was
established to discuss issues concerning ‘Social Europe’ only at a very late stage.2
is Working Group (XI) had to deal wit h the issue of social security a mong others.
One of the questions they had to dea l with was whether decision mak ing by quali ed
majority regarding soc ial security could be i ntroduced. During this proce ss it became
clear that (some of) the Member State s did not support the introduction of Quali ed
Majority Voting (QMV) decision making in the area of social security and social
assistance.3
In particular, the UK did not feel the need for any kind of harmonisation. e
position of the British government on thi s issue explicitly stated that4
We therefore welcome the use of QMV as t he general rule for legislative proposals. It is
clearly in Britain’s interests for QMV to help us cooperate on issues such as asylum and
illegal immigration, which requ ire solutions at European level. But we will insist that
1 OJ 2004 C 310.
2 CONV449/02, no. 5 and CONV421/02.
3 See F. Do rssem ont an d Y. Joren s (200 5) De ‘so cia le dim ensie ’ van d e Euro pese U nie, n a de gr ondwet
en de uitbreiding, SM A, pp. 13–24.
4 See A Constitutio nal Treaty for the EU, e Britis h Approach t o the European Uni on, Intergover nmenta l
Conference, Septe mber 2003, pp. 33–35.
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