European Journal of Social Security

The EU regulations on the coordination of social security systems provide a high standard of protection for people moving within the EU. For a long time, third-country national workers have been excluded from this protection. This article shows that the explanation for this exclusion is to be found in the legal basis of the EU regulations. This article also demonstrates how developments in primary law in the last two decades have paved the way for the extension of the EU regulations to third-country nationals. Regulation 1231/2010 offers third-country nationals, in the field of social security, the same protection as EU citizens moving within the EU. However, this extension is subject to two conditions. For this reason, a considerable number of third-country nationals working in a Member State do not benefit from equal treatment as nationals of the host State. The article clarifies why Regulation 1231/2010 does not apply in Norway, Iceland, Liechtenstein, Switzerland and Denmark. Attention is paid to a number of challenges and open questions, such as the special position of the UK and the relationship between Regulation 1231/2010 and bilateral agreements concluded between a Member State and a third country.

This article explores the employment and social security rights of third-country nationals guaranteed by a number of EU Directives which are specifically meant to promote and regulate labour migration to the EU. Some were agreed with a view to making the EU more attractive for labour migration from outside the EU. Others were meant to (partially) harmonise rights and/or procedures in order to create a level playing field between the Member States. More specifically, it examines the relevant provisions in the Blue Card Directive 2009/50, the Employers’ Sanctions Directive 2009/52, the Single Permit Directive 2011/98, the Seasonal Workers Directive 2014/36, the Intra-corporate Transferees Directive 2014/66 and the Students and Researchers Directive 2016/801. The article emphasises that this set of EU labour migration Directives are the result of a sector-by-sector approach. The EU failed to adopt an overall and common EU labour migration policy and corresponding legal instruments. Even with regard to entitlement to equal treatment in terms of employment and social security rights, these EU instruments lack a common approach and give the Member States room to provide for exceptions. In addition, these Directives do not contain any provisions regarding the aggregation of periods of insurance, employment or residence. As a result, they offer additional protection for the social security rights of migrant persons, but they need to be complemented by other instruments such as multilateral or bilateral agreements with third countries, or even human rights instruments.

In March 2012, the European Commission adopted a Communication on the external dimension of EU social security coordination. On the one hand, the Commission explained that social security coordination between the EU and rest of the world is dealt with at a national level. On the other hand, the Commission argued that a common EU approach to social security coordination with third countries was under development. This common EU approach to social security coordination consists of a number of elements. One element relates to Association Agreements and Stabilisation and Association Agreements. These Agreements and specific Decisions taken by Association Councils (established by such Agreements) stipulate rules, which govern social security coordination for workers and their families, who move between the EU and the associated country. According to the Commission, once the Association Council Decisions are adopted, the common EU approach to social security coordination will be implemented. Six years after the publication of the 2012 European Commission Communication, questions arise as to whether or not the Association Agreements have been implemented, and the reasons for this.

This article seeks to examine and contrast selected Association Agreements and Stabilisation and Association Agreements (SAAs), which provide social security rules for the nationals of the contracting parties. These will include the Ankara Agreement concluded with Turkey, the Euro-Mediterranean Agreements with Algeria, Morocco and Tunisia, and the SAAs with the Balkan countries. The aim of this article is to provide an overarching overview of the different legal positions that third-country nationals may rely on, based on their nationality, and to explore whether or not Association Agreements have been implemented in terms of social security coordination rules.

Bilateral social security agreements are the oldest instruments which provide social security entitlements to persons moving between the countries. EU Member States’ approaches to distinctive bilateral agreements with Non-EU States are analysed herein. Bilateral social security agreements are not only the oldest coordination instruments, but remain the most important ones linking social security systems of MS and Non-EU States. They are tailored to the social security systems of the two contracting states. Nevertheless, bilateral social security agreements might be neither comprehensive in their scope of application nor complete in covering all coordination principles. Moreover, they do not create a uniform coordination system. Under the modified migration patterns - i.e. movements for shorter period of time and between many countries - a more comprehensive social security coordination mechanism might be required.

For EU Member States like Austria, the EU Regulations on the coordination of social security schemes are the focus of academic and political attention. They deal with many cases and are usually very complex. They are supervised by the European Commission and the CJEU. Compared to these EU rules, bilateral agreements with third countries are treated as step-children. They do not get the academic and political attention they deserve, taking into account their importance in practice. They have common features compared to the EU rules, but there are also remarkable differences in the texts and their interpretation. The differences sometimes lead to practical problems of application and interpretation in the EU Member States. Based on Austrian experiences, all these aspects are elaborated in this article. Enhanced cooperation and exchange of information between the EU Member States in the future could help to improve the negotiating position of these countries and also guarantee greater esteem for the bilateral agreements.

This article describes the history of policies for making bilateral agreements by the Netherlands, a country with considerable migration to and from over time and one of the founding states of the EEC. For this reason, the characteristics of the agreements made and the main developments over time can provide a mirror for discussion of the bilateral agreements of other Member States. The development of the reasons of making bilateral agreements are described and this makes it possible to distinguish several generations of agreements. It is contended that this is useful in describing the agreements made by other countries.

In a 2012 Communication, the European Commission described the current approach to social security coordination with third countries as ‘patchy’. The European Commission proposed to address that patchiness by developing a common EU approach to social security coordination with third countries whereby the Member States would cooperate more with each other when concluding bilateral agreements with third countries. This article aims to explore the policy agenda of the European Commission in that field by conducting a comparative legal analysis of the Member States’ bilateral agreements with India. The idea behind the comparative legal analysis is to determine whether (1) there are common grounds between the Member States’ approaches, and (2) based on these common grounds, it is possible to suggest a common EU approach. India is taken as a third-country case study due to its labour migration and investment potential for the European Union. In addition, there are currently 12 Member State bilateral agreements with India and no instrument at the EU level on social security coordination with India. Therefore, there is a potential need for a common EU approach to social security coordination with India. Based on the comparative legal analysis of the Member States’ bilateral agreements with India, this article ends by outlining the content of a potential future common EU approach.

The article aims to examine the existing possibilities for social security coordination with Eastern partnership countries by taking as case studies two new Member States with relatively recent migration policies: Bulgaria and Poland. It first presents social security coordination dynamics at the national level, looking into the bilateral agreements concluded by Bulgaria and Poland and at their personal and material scope. Then it moves to an analysis of their implementation based on empirical data gathered through focus groups with migrant workers coming from Ukraine and Russia, interviews with officials and data obtained from the respective Ministries. The article employs a rights-based framework for analysis consisting of international standards in the field of coordination of social security, against which it assesses the bilateral agreements concluded by Bulgaria and Poland with Eastern Partnership countries.

The purpose of this final contribution is to offer a broad schematic overview of ‘mechanisms’ that can be used to strengthen the social security protection of persons moving in and out of the EU. Seven mechanisms have been selected for discussion: national unilateral standards, EU unilateral standards, bilateral agreements, EU coordination of bilateral agreements, EU third country agreements, multilateral co-operation and global standards. The existence of this plethora of mechanisms, each with its own merits and shortcomings, casts a shadow over the possibility of a uniform EU regime for external social security relations. Any attempt to introduce such an approach can immediately be contradicted by alternative approaches and mechanisms which can be used both by the EU and by the individual Member States. It is suggested that more coherence in external EU social security coordination can perhaps be found in a conceptual way, by layering the seven mechanisms in a logical manner.