Comparative analysis regarding access to benefits and social advantages for migrant workers, their family members in the EU (II)

Abstract

Directive 2004/38 on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States lays down minimum conditions under which Union citizens and members of their families shall execute their rights to move and reside in the territory of Member States. However, the Directive 2004/38 also covers the issue of social benefits in a twofold way. First of all the right to social benefits may be treated as a condition to have the right to legal residence at the territory of the host Member State. Secondly, according to the Directive 2004/38 only those applicants having a right to reside may be entitled to equal treatment as regards access to particular social benefits. Regulation 492/2011 aims to secure and guarantee for migrant workers, including frontier workers, equal treatment with national workers as regards access to social benefits. In this context, Regulation 492/2011 aims at facilitating the principle of equal treatment as enshrined in the primary law (i.e. Art. 45 of the TFEU). The concept of “social advantages” as defined in Art. 7(2) of Regulation 492/2011 is interpreted by the CJEU very broadly, as it covers not only all benefits connected with contracts of employment, but also all other advantages which are open to citizens of the host Member States and consequently are also open for workers primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory. However, it shall be emphasized that according to the case law of CJEU, access to social benefits in the host Member States shall not be unconditional for all migrating EU citizens and members of their families. Therefore consequently, as regards workers and member of their families, who may as a rule, prove to have a genuine link with the employment market of the host Member State, they are entitled to unconditional access to social benefits in this State. But as regards other groups of migrants, depending on the nature of certain benefits, it is possible to require from them to have a certain degree of integration in the host Member State in order to entitled to certain benefits. It shall be emphasized that beyond the scope of this note are issues concerned with social security benefits which are subjected to EU coordination schemes based on Regulation 883/2004 on the coordination of social security systems.