Benefits Tourism and EU Law

Aidan O’Neill QC

Article 34(2) of the EU Charter of Fundamental Rights states that:

“everyone residing and moving legally within the European Union is entitled to social security benefits and social advantages in accordance with Union law and national laws and practices.”

The relevant EU law which this Charter provision implicitly refers to is now contained in European Parliament and Council Regulation (EC) 883/2004 ([2004] OJ L166/1) on the coordination of social security systems. This regulation came into effect on 1 May 2010. Unlike directives, there is no need for any intermediate national implementing measures:  an EU Regulation is “directly applicable” – see Article 288 of the TFEU.  It may be relied upon – if necessary in preference to any contrary requirements of national law – before national courts, tribunals and administrative bodies applying the Member State’s social security system.

EU law in the area of social security provides for the coordination of national legislation, rather than its harmonisation. Thus EU law does not provide for uniform rates and conditions for social security benefits across the EU, but does require that all Member States grant social benefits to EU nationals who “habitually reside” in that Member State. And Article 4 of Regulation 883/2004 prohibits Member States from imposing any additional requirements which might result in any indirect discrimination against EU nationals. In Borawitz v Landesversichterunganstalt Westfalen (Case C-124/99)  the CJEU observed that:

conditions imposed by national law must be regarded as indirectly discriminatory where, although applicable irrespective of nationality, they affect essentially migrant workers or where the great majority of those affected are migrant workers, as well as conditions which are applicable without distinction but can more easily be satisfied by national workers than by migrant workers or where there is a risk that they may operate to the particular detriment of migrant workers … It is otherwise only if those provisions are justified by objective considerations independent of the nationality of the workers concerned, and if they are proportionate to the legitimate aim pursued by the national law.”

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