Social security of migrant workers

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Social security of migrant workers

• Consular training
• 23.6.09
• Gabriela Pikorová (Ministry of Labour and Social
  Affairs)
• Aneta Wolfová (Ministry of Health)

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Historic development   Each country has its own
social security scheme which determines the scope
of persons covered, level of contributions and
conditions of entitlements to benefits. It
causes difficulties for persons that move between
those states (it may be impossible to fulfill all
the conditions (especially the minimum years of
contributions for pensions, that may even be 30
years. Solution ? bilateral agreements
or multilateral tools agreements (Council
of Europe) EU Regulations
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EU rules on coordination of social security for
migrant workers EC rules in this field exist
since the very beginning (3/1958) Currently
three regulation apply Regulation
1408/71 Regulation 574/72 implementing R.
1408/71 Regulation 859/03 on application of R.
1408/71 to third country nationals. Since 1st
March 2010 new regulations will apply Regulation
883/04 Regulation implementing R. 883/04 (not yet
given a number) Situation of third country
nationals still unclear. New rules? Old rules?
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Aim of coordination   Regulation no. 1408/71
should secure that, migrant worker should not
lose any of his/her entitlement due to
citizenship of a different MS, due to residence
in another MS or because of not-fulfillment of
compulsory period of insurance provided for in
the legislation of a give MS. If this was
not secured, it would be an obstacle to the free
movement of persons within Europe.
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Four main principles

• I. Equality of treatment
• II. One applicable legislation
• III. Aggregation of periods of insurance
• IV. Export of benefits to other states.
• Recently, the good cooperation between
  institutions of MS is emphasized as the
  prerequisit of good functioning in practice.
  Therefore, such cooperation is sometimes
  considered as fifth main principle of
  coordination.

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Four main principles

• I. Equality of treatment
• contains a rule that forbids different
  treatment based on nationality.
• Article 3 of the Regulation no. 1408/71 provides
  that all persons residing in certain MS are
  subject the same rules (rights and obligations)
  and have the same advantages as the nationals of
  such state.
• Both kinds of discrimination (direct and also
  indirect) are prohibited!

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Four main principles

• II. One applicable legislation
• Absence of insurance or double insrurance of
  certain person is an obsacle to free movement.
• Therefore, Regulation provides for precise
  criteria in order to determine which legislation
  is competent. When competent state is fixed,
  this state deducts contributions and pays
  benefits. No other state can!
• As a general rule, principle of the state of
  employment applies. I.e. a person is insured in a
  state where she exercises the gainful activity,
  without any regard to where such person resides.
  (Art. 13 Regulation (EEC) no. 1408/71).

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Four main principles

• III. Aggregation of periods of insurance
• For migrant workers it is difficult or impossible
  to fulfill the condition of compulsory periods of
  insurance.
• Therefore, in order to assess the condition of
  certain period of insurace, the account must be
  taken of the periods of insurance acquired in
  other MS (in another words periods must be
  AGGREGATED
• Article 18 (sickness and maternity), 38
  (invalidity), 45 ( pensions), 64 (death grant),
  67 (unemployment benefits) a 72 (family
  benefits).

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Four main principles

• IV. Export of benefits to other states.
• If a condition of residence in certain MS was
  applied in order to pay out benefit, it would
  disadvantage the migrant workers
• Therefore, every person may claim benefit based
  on previous insurance in MS irrespective of his
  state of residence.
• There are only very limited exceptions to this
  rule, when a benefit is too closely related to
  general contidions in certain state)
• (Art. 10a Regulation 1408/71, special
  non-contributory benefits)

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To what benefits it applies?

• Regulation shall apply to the following branches
  of social security
• (a) sickness and maternity benefits (including
  health care)
• (b) invalidity benefits
• (c) old-age benefits
• (d) survivors' benefits
• (e) benefits in respect of accidents at work and
  occupational diseases
• (f) death grants
• (g) unemployment benefits
• (h) family benefits.
• Exclued benefits - social assistance
• - benefits based on collective agreemetns
• - benefits for victims of war

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Who can rely on coordination?

• Nationals of the EU Member States (workers,
  self-employed, students, pensioners, civil
  servants, unemployed)
• Nationals of EEA Member States and of
  Switzerland
• Refugees and persons without nationality residing
  in the EU
• Family members of the above mentioned without any
  regard to nationality.
• Third country nationals legaly residing in the
  EU.
• on condition that they move between Member States
  
• there is cross border element.

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Pensions

• Person gets separate benefit from every state
  where s/he was insured. Institution of each MS
  where person was insured calculates
• I. National pension (based only on its own
  periods of insurance)
• II. Pro rata pension
• 1) theoretical amount (for all the periods in
  all MS, as if they were acquired in this MS)
• 2) the ratio of own periods of insurance
  to all periods of insurance, and a part that
  corresponds to OWN periods of insurance.
• Finally, those to amonts are compared and the
  higher is paid out.

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Unemployment

• All main principles apply (equality, aggregation,
  one comp. State).
• However, if a person wants to move as a job
  seeker to another MS, for export of benefits
  there are restrictions
• person must be available for 4 weeks as a job
  seeker in a MS of the last employment,
• such person may than leave this MS and look for
  work in another MS, but for 3 month maximum. For
  this period benefit is paid out by institution of
  the host state, but the amoutn is determined by
  the MS of the last employment (who than
  reimburses the costs to the host state)
• Special regime for FRONTIER WORKERS - the
  entitlement arises solely in the state of
  residence (even when last employment was in
  different MS)

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Family Benefits

• Family benefits are all benefits paid to a
  family/parent that shoudl compensate the higher
  costs of a family due to children. These benefits
  are also influenced by demographic policy of a
  state.
• All main principles of coordination apply,
  however, in case of family benefits there is DUAL
  COMPETENCE (in case family members reside in
  different state than MS of work (MS A residence
  of family, MS B place of work of the mother).
• In such case
• MS B has a PRIORITY i.e.provides benefits as
  first
• MS A compares the benefits from MS B with his
  own and in case MS A would provide higher
  benefits, the DIFFERENTIAL SUPPLEMENT is paid to
  the family from MS A.
• Different rules if the work is carried out in
  both states (A and B)- there the decisive factor
  for priority is RESIDENCE of children.

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Annexes to the Regulation no. 1408/71

• Contain maily specific information concerning the
  ways
• of application of the coordination rules in
  different
• Member States (derogations, specific procedures).

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Annexes to the Regulation no. 574/72

• Determine mainly the institutions responsible
  for individual branches in all Member States.

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Forms for implementation

• General - E 001 (request for information)
• Posting of workers - E 101 102
• Health care - Forms 100 serie
• Pensions - Forms 200 serie
• Unemployment Forms 300 serie
• Family benefits Forms 400 serie
• Other (registration etc.) Forms 500 serie
• Non contributory benefits Forms 600serie Forms
  for implementation

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Useful Sources

• http//ec.europa.eu/social - Your social security
  rights, Pensions - EULISSES
• http//www.tress-network.org - network of experts
  on the social rights of migrants, database of
  texts and decisionsetc.
• http//ec.europa.eu/employment_social/missoc/ -
  info on the social security in EU states

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Healthcare

• Determination of institution responsible for
  bearing of the costs of healthcare
• workers
• frontier workers
• family members
• family members of pensioners
• pensioners
• family members of students
• students

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Healthcare in another member state

• stay in another member state
• residence in another member state
• entitlement documents EHIC and its replacement
  certificate, E106, E109, E121
• Article 22 of Reg. 1408/71
• all healthcare which becomes necessary with
  regards to medical grounds taking into account
  expected length of stay and health conditions of
  person concerned
• planned healthcare prior authorisation

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Reimbursement of healthcare

• equal treatment to nationals of member state of
  treatment
• healthcare provided according to legislation of
  the member state of treatment
• general rule patients does not pay for
  healthcare (unless nationals pay)
• co-payment
• transport of the patient
• all healthcare so the patient can leave
  healthcare facility on its own

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Reimbursement between institutions

• healthcare provider - invoice to institution in
  the member state of treatment
• requires payment form the competent institution
• competent institution at the end bears the costs
  actual costs or average costs
• liaison bodies
• E125
• in case when person bears costs himself/herself
  reimbursement by competent institution - E126

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ESD and patient mobility

• planned non-hospital treatment
• without prior authorisation
• costs according to legislation of competent state
• must be healthcare provided in competent member
  state
• never more than actually paid
• hospital treatment must be prior authorisation
• not clear where the border-line
• secondary legislation