CYIL Vol. 6, 2015

THE LIMITS OF SOǧCALLED BENEFIT TOURISM AND THE FREE MOVEMENT OF EU CITIZENS paragraph 1 of Regulation 883/2004, social security includes e.g. sickness benefits, maternity and equivalent paternity benefits, old-age benefits, unemployment benefits and family benefits. With regard to the term “social assistance”, Article 3, paragraph 4 of Regulation 883/2004 does not list concrete examples. 15 The interpretation of this concept is therefore difficult in practice. Secondary EU legislation does not define the criteria for the classification of a specific social benefit either under social security or under social assistance. ItwasthereforeuptotheCJEUanditsextensivecase-lawtoclarifytheconditionsforthe application of Regulation 883/2004.TheCJEU, generally, assumed that, while the social security system covers certain risks enumerated in Article 3, paragraph 1 of Regulation 883/2004, the social assistance system provides aid in cases of emergency and poverty. However, as many Member States in their national legal systems regulate some benefits which are not connected to previous insurance contributions, there is no precise line separating social security from social assistance. In this context, the CJEU understands social security benefits as benefits that are accessible for individuals automatically under the law and without consideration of individual social vulnerability. Another rule is that social assistance is subsidiary in relation to social security. 16 Individual social rights established at the national level should be evaluated according to autonomous criteria defined by the CJEU and not according to whether a Member State classifies a particular benefit as part of social security or social assistance. The structure of Regulation 883/2004, which is in itself quite complex, is further complicated by the category of so-called “special non-contributory cash benefits” within the meaning of Article 70, paragraph 1 of Regulation 883/2004, 17 which have characteristics of both social security and social assistance and are listed in Annex X to the Regulation. These hybrid benefits to which Regulation 883/2004 applies 18 and which must therefore be provided to citizens and migrant EU citizens without discrimination, 19 cause evidently the biggest problems related to the migration of poor EU citizens into the social systems of the richer Member States. These problems are caused not only by the complex definition of the three categories of benefits under Regulation 883/2004, but mainly by the difficult relationship between Regulation 883/2004 and Directive 2004/38. Indeed, Directive 2004/38 makes explicit reference to the term “social assistance system” and deals with 15 According to the European Commission, we may consider social assistance benefits as benefits which are provided by Member States to those who lack sufficient resources to meet their basic needs. [See Communication from the Commission to the EP, the Council, the European Economic and Social Committee and the Committee of the Regions: Free movement of EU citizens and their families. Five actions to make a difference, COM (2013) 837 final]. 16 For further details see Schreiber, Wunder, Dern, op. cit ., 63-64. 17 See also Article 3, paragraph 3 of Regulation 883/2004. 18 Article 3, paragraph 3 of Regulation 883/2004. 19 Article 4 of Regulation 883/2004.

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