CYIL Vol. 6, 2015

HARALD CHRISTIAN SCHEU CYIL 6 ȍ2015Ȏ his recourse to the social assistance system, but the host Member State should take into account the temporariness of potential difficulties, the length of stay, the personal situation of EU citizens and the amount of assistance which has already been provided. These rules sufficiently indicate a certain space for those who migrate into the social systems of Member States, although, at first glance, this space seems to be very narrow. An inactive Union citizen whose residence, in the light of CJEU jurisprudence, does not amount to an “unreasonable burden on the social assistance system” has the right to reside in another Member State and may gain access to social benefits provided by national law. From the perspective of migration law, such a concept of free movement can be considered as the first pillar of a social union. The second pillar of the social union can be seen in Regulation 883/2004 of 29 April 2004 on the coordination of social security systems. 12 While previous law, i.e. Council Regulation 1408/71/EEC of 14 June 1971, expressly covered workers, self-employed persons and students from EU Member States, Regulation 883/2004 extended the personal scope of the coordination rules to all nationals of a Member State. 13 Following this extension of personal scope, Regulation 883/2004 covers the rights of both economically active and inactive EU citizens. The concrete rules concerning the coordination of social systems primarily refer to a situation where EU citizens are exercising economic activities in more than one Member State or reside in a Member State other than that in which they acquired social entitlements. The main idea of Regulation 883/2004 is that the exercise of the right to freedom of movement shall not be associated with any disadvantages in the field of social benefits. A more detailed analysis of Regulation 883/2004 would far exceed the scope of this paper. 14 We only want to focus on the problematic relationship of the Regulation to Directive 2004/38 and highlight the specific impact of the relevant rules on the social rights of inactive EU citizens. Given that the aim of Regulation 883/2004 is not the harmonization but the coordination of social security systems of the Member States, it is up to the Member States to regulate access to social benefits. Regulation 883/2004 extends to all areas of social security, but not to the area of social assistance. According to Article 3, 12 See also Regulation 465/2012/EU of 22 May 2012 amending Regulation (EC) no. 883/2004 on the coordination of social security systems and Regulation (EC) no. 987/2009, laying down detailed rules for implementing Regulation (EC) no. 883/2004. 13 Cf. Article 2 of Regulation 1408/71 and Article 2 of Regulation 883/2004. It should be noted that Regulation 883/2004 also applies to certain groups of citizens of third countries. The inclusion of further groups of third-country citizens into the system of social security coordination is provided by Council Regulation 859/2003/EC, which extends the application of the provisions of Regulation 1408/71/EC and Regulation 574/72/EEC to nationals of third countries, and EP and Council Regulation 1231/2010/ EU, which extends the personal scope of Regulation 883/2004/EC and Regulation 987/2009/EC to third country nationals. 14 For a detailed commentary, see Schreiber, F. Wunder, A. Dern, S. VO (EG) Nr. 883/2004. Europäische Verordnung zur Koordinierung der Systeme der sozialen Sicherheit. Kommentar. München, 2012.

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