EU TFEU: Social security for migrant workers

Free movement for workers is one of the most important freedoms for ordinary citizens of the European Union, but if they lose their earned benefits this freedom becomes an empty shell. Only by adding (or more precisely, aggregating) these benefits can migrant workers really grab the opportunities offered by the common job market offered by the European Economic Area (EEA).

Social security benefits have to be calculated and paid across national borders to millions of workers and self-employed persons.

The EU Treaty of Lisbon lays the foundations for swifter and more comprehensive legislation on migrant workers’ rights by abolishing the requirement for unanimous Council acts, but qualified majority voting (QMV) is dampened by the installation of a so called emergency brake, which offers an obstructing member state the opportunity to postpone and ultimately scrap a proposal.


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In the Treaty of Lisbon (ToL), under Free movement of workers, the intergovernmental conference (IGC 2007) made the following amendments to Article 42 of the Treaty establishing the European Community (TEC). See OJ 17.12.2007 C 306/54:

51) Article 42 shall be amended as follows:

(a) in the first paragraph, the words ‘migrant workers and their dependants:’ shall be replaced by ‘employed and self-employed migrant workers and their dependants:’;

(b) the last paragraph shall be replaced by the following:

‘Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or

(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.’.

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Luckily, the Council has at least seen to that there is a consolidation of the current treaties, the TEU and the TEC, the latest one in OJ 29.12.2006 C 321 E/58-59, where we find Article 42 TEC as it is today:

Article 42 TEC

The Council shall, acting in accordance with the procedure referred to in Article 251, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Member States.

The Council shall act unanimously throughout the procedure referred to in Article 251.

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Whilst looking forward to the belated consolidated versions of the Lisbon Treaty to be published by the Council in all the treaty languages 15 April 2008, we piece together the provision according to the instructions given.

The express amendments are straightforward, the horizontal amendments to be kept in mind (ordinary legislative procedure) and the new numbering inserted. Additionally, it is helpful to see the context of each Article.

We should end up with a provision looking like this:

Part Three ‘Policies and internal actions of the Union’

Title III (renumbered Title IV) ‘Free movement of persons, services and capital’

Chapter 1 ‘Workers’

Article 42 TFEU (ToL), renumbered Article 48 TFEU

The European Parliament and the Council shall, acting in accordance with the ordinary legislative procedure, adopt such measures in the field of social security as are necessary to provide freedom of movement for workers; to this end, it shall make arrangements to secure for employed and self-employed migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Member States.

Where a member of the Council declares that a draft legislative act referred to in the first subparagraph would affect important aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the ordinary legislative procedure shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the ordinary legislative procedure; or

(b) take no action or request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.

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I then check my result against four of those who already have offered the public readable consolidated versions, namely the almost perfect consolidated Lisbon Treaties of the IIEA (Peadar ó Broin), the FCO (Anonymous), Statewatch (Steve Peers) and ‘Der Vertrag von Lissabon’ (in German; Klemens H. Fischer).

Naturally, most people need only an accurate, readable text. They are advised to turn to one of the consolidations directly.

Since there is a daily demand for consolidated versions, there is a steady stream of visitors to this blog as a result of web searches. Sadly, many seem to stumble upon earlier and (even) less complete posts.

Therefore, I take the opportunity to refer the interested readers to my latest post on existing consolidated language versions ‘Consolidated EU Lisbon Treaty Update 29 March 2008’, and to the links presented in that post.

If kind readers bring other consolidations, official documents or secondary literature on the Lisbon Treaty to my attention, there may be cause for coming updates.

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The objective of this blog is to offer the reader the tools to compare the current treaties Article by Article with the Lisbon Treaty, including the preceding steps, the draft Constitution and the Constitutional Treaty. (Depending on the situation, some suggestions for further reading may be offered about the politics and secondary legislation in question.)

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Thus, our following stop is the European Convention and its draft Treaty establishing a Constitution for Europe. The proposed Article III-21 looked like this (OJ 18.7.2003 C 169/31):

Article III-21 Draft Constitution

In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by introducing a system to secure for employed and self-employed migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the several countries;

(b) payment of benefits to persons resident in the territories of Member States.

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This is one instance where the IGC 2004 did not content itself with giving the work of the European Convention its blessing. Article III-136 of the Treaty establishing a Constitution for Europe introduced new elements (OJ 16.12.2004 C 310/60):

Article III-136 Constitution

1. In the field of social security, European laws or framework laws shall establish such measures as are necessary to bring about freedom of movement for workers by making arrangements to secure for employed and self-employed migrant workers and their dependants:

(a) aggregation, for the purpose of acquiring and retaining the right to benefit and of calculating the amount of benefit, of all periods taken into account under the laws of the different countries;

(b) payment of benefits to persons resident in the territories of Member States.

2. Where a member of the Council considers that a draft European law or framework law referred to in paragraph 1 would affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system, it may request that the matter be referred to the European Council. In that case, the procedure referred to in Article III-396 shall be suspended. After discussion, the European Council shall, within four months of this suspension, either:

(a) refer the draft back to the Council, which shall terminate the suspension of the procedure referred to in Article III-396, or

(b) request the Commission to submit a new proposal; in that case, the act originally proposed shall be deemed not to have been adopted.

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You now have the materials at your disposal for your comparison of the different stages of the treaty reform process.

Here are a few comments on the similarities and differences to get you going:

The draft Constitution used clearer and more expressive terms for legislative acts, so ‘European laws or framework laws’ made their appearance here, too, instead of the less elegant ‘procedure referred to in Article 251’ standing for co-decision.

The beef of the European Conventions proposal was, however, dropping the text of Article 42(2) TEC with the required unanimity in the Council ‘throughout’. This paved the way for qualified majority voting (QMV) in the Council in order to better safeguard the interests of migrant workers.

In principle, adding ‘employed and self-employed’ to migrant workers and their dependants broadened the scope of the draft Constitution provision.

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The IGC 2004 was more cautious in its approach. ‘Making arrangements’ can be seen as less ambitious than ‘introducing a system’ to secure migrant workers’ benefits, in the first paragraph. ‘Several’ or ‘different’ countries should not make any material difference.

But the real indication of some member states’ apprehension was the added second paragraph. The IGC 2004 introduced the so called emergency brake, which meant that any member state could refer a proposed legislative act to the European Council if it felt that it would ‘affect fundamental aspects of its social security system, including its scope, cost or financial structure, or would affect the financial balance of that system’ or ‘the financial balance of that system’.

This would, in effect, remove a question referred from QMV to the unanimous decision making of the European Council, although such a question would plausibly have to ‘affect fundamental aspects’ of the social security system of the referring member state.

In four months, the European Council unanimously was to give a green light for the Council to go ahead or scrap the proposal (and request a new and neutered one).

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The Lisbon Treaty retains the scope of both employed and self-employed (and their dependants) as well as the ordinary legislative procedure of the Constitution as the main procedural rule. But the IGC 2007 lowered the bar for referral compared to the Constitution by replacing ‘fundamental aspects’ by ‘important’ ones, making it less burdensome for an obstructing member state to argue its case for referral politically, although all it really would have taken and takes is the determination of a member state to issue a declaration.

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One detail, of minor importance, is the the position of the word ‘shall’ in the sentences about acting in accordance with the ordinary legislative procedure. With no firm indications (point 2(c)) the consolidations (and I) have reached different conclusions along the way, but when the official unofficial consolidated versions appear (for illustrative purposes) we will follow their wording.

In the IIEA consolidation I have noticed a small, recurring omission. In essence, it is no problem, since the ordinary legislative procedure entails the participation of the European Parliament and the Council, but in some instances among the insidious horizontal amendments the words ‘the European Parliament and’ have not been inserted.

As I said earlier, as far as I have advanced, I have found the consolidated versions I have used to be highly reliable, ‘almost perfect’.

People may have different opinions about the blessings or dangers of the Lisbon Treaty, but these sources are dependable.

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Just in case someone believes that the governments of the member states (IGC 2007) take matters concerning their coffers lightly, or that the European Council could escape the strictures of unanimity in case of referral (the emergency brake), two joint declarations have been attached to the Lisbon Treaty (Final Act, OJ 17.12.2007 C 306/256):

22. Declaration on Articles 42 and 63a of the Treaty on the Functioning of the European Union

The Conference considers that in the event that a draft legislative act based on Article 69 A(2) would affect important aspects of the social security system of a Member State, including its scope, cost or financial structure, or would affect the financial balance of that system as set out in the second paragraph of Article 42, the interests of that Member State will be duly taken into account.

23. Declaration on the second paragraph of Article 42 of the Treaty on the Functioning of the European Union

The Conference recalls that in that case, in accordance with Article 9 B(4) of the Treaty on European Union, the European Council acts by consensus.

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A brief history of social security benefits is presented on the European Parliament’s web page ‘Social security for migrant workers’ (last update 22 February 2001):

http://www.europarl.europa.eu/factsheets/4_8_4_en.htm

The Commission’s Scadplus pages, with summaries of legislation, offer later information on the page ‘Social security schemes and free movement of persons: Basic Regulation’, last updated 25 June 2007:

http://europa.eu/scadplus/leg/en/cha/c10516.htm


Ralf Grahn