Abstract
Residence, Employment and Social Rights of Mobile Persons: On how EU Law defines where they belong is published as Volume 36 of the very well established Social Europe Series that offers readers more than an introduction to the social security systems of the Member States of the European Union. The series gives social security experts with comparative experience the opportunity to place their comparative knowledge in a broader context.
The editor of this genuinely interesting book is Herwig Verschueren, Professor of International and European Labour and Social Security Law at the University of Antwerp, and visiting Professor at the University of Brussels (VUB). In 14 chapters written by 14 authors from various Member States and different fields of law, the book examines one of the key challenges of contemporary European society: how EU law defines where one belongs.
This is a question that concerns all mobile persons when crossing borders: to what extent their legal order applies and what links constitute the basis for legal claims vis-a-vis other Member States. The book discusses these links and attempts to determine, more particularly, the links required to obtain the right to reside and to obtain social and employment protection in a Member State other than one’s own.
The reader can learn how different criteria were developed and are used to establish links in the framework of internal market rules, citizenship rights and immigration rules contained in secondary legislation, such as the Citizens’ Rights Directive, the Family Reunification Directive, the Long-Term Residence Directive, the Coordination of Social Security Systems Regulation, the Rome I Regulation, and the Posting of Workers Directive. Criteria are numerous and include the exercise of an economic activity, the duration of one’s residence, being a threat to public order, being a family member of a resident, having sufficient resources to cover one’s subsistence and not becoming a burden on the social assistance system, fulfilling integration requirements, the person’s place of work and place of residence, the country where work is habitually carried out or the place of business through which the employee is engaged. The authors skilfully explain how the European Court of Justice uses other criteria that do not concern the application of secondary Union law, but, rather, Treaty provisions on citizenship and free movement, such as having a sufficient link with the labour market of the host Member State, the duration of one’s residence or stay in the host Member State, the payment of taxes, education of children, enrolment in higher education or past fulfilment of one of these criteria.
Therefore, there are numerous answers to the question of where one belongs. However, they can diverge, overlap or even conflict, and this affects the legal position of individuals, depending on the interpretation and application of EU legislation. This continues to pose challenges, which, in turn, lead to legal uncertainty or even confusion. Such issues were discussed at an expert seminar in May 2015 at the University of Antwerp, where scholars from different legal fields were invited to critically analyse, discuss and compare the multitude of criteria in EU legislation and in the case law of the European Court of Justice. The seminar papers and comments by some of the respondents are published in this book.
The book has, in this reviewer’s opinion, three noteworthy strengths. First, the authors provide an overview of the abundance of case law on the topic (which specifies and completes the legal provisions). Secondly, the book provides a very prudential outline of the eye-opening paradigm shift – from the granting of rights for the purpose of integration (e.g. facilitation of mobility through non-discrimination, respect for family life, and security of residence) to making rights dependent on showing sufficient integration into the host State’s society or economy. This can be found in one way or another in several chapters and reflects ‘the broader social and political context that changes over time’ and ‘the Member States’ growing concern about immigration policy’. If such a trend is to continue, it is not far-fetched to estimate that nationality will again play a larger role in the process of determining where one belongs, as eloquently pointed out in the overall conclusions. Thirdly, the authors critically assess the case law by pointing out the inconsistencies of the European Court of Justice, which could perhaps also be influenced by the Advocate Generals’ diverging opinions.
The individual contributions successfully provide food for thought for readers who must ultimately grasp the complexity of the issues at hand. Overall, the book provides a systematic, understandable and in-depth treatment of the topic in attempting to answer the key overarching question. In so doing, it provides some answers, while substantially posing challenges that remain to be entirely resolved in theory or practice. These challenges include how to determine when an inactive citizen has sufficient resources, problems that arise for economically inactive persons in Member States with a national health service system and with comprehensive sickness insurance, and what the meaning of the concept of ‘worker’ is. They also include demarcation between the categories of active and inactive EU citizens, taking account of ‘new forms of non-standard labour and of ‘work’ that does not fall under the EU definition of this concept, such as ‘care work’; and ‘complicated situations [that arise] when the EU rules in the fields of labour law and social security lead to the applicability of different national laws concerning the same subject, for instance the social protection of the worker in case of sickness. In this sense, the book constitutes a highly important contribution that additionally succeeds in providing a vivid illustration of cases, some of which are yet to be adequately analysed theoretically. It is, therefore, recommended to anyone who wishes to gain some insight into how EU law defines where an individual belongs, but it is likely to be more suitable for readers with an advanced knowledge of the field. It is especially relevant for researchers and practitioners, and all those with an interest in the study of EU social law.
Readers of the European Journal of Social Security might be particularly interested in the chapters that address the following questions: whether and how being economically active still matters; where EU mobile workers belong according to Rome I and the Posting of Workers Directive; and how rules of conflict between this Directive could conflict with those in the Coordination Regulation. Moreover, selected case law of the European Court of Justice concerning conflict rules is the object of a special chapter that critically discusses whether, in these cases, a non-competent Member State should have the power or the duty to grant the claimed benefit. These chapters are particularly enriching in that they include the legal point of view of a specific national system and will undoubtedly be interesting for readers who are eager to enhance their comparative knowledge of the issues at hand.
In conclusion, the book significantly elevates the discussion around EU (social) law as it to mobile persons, focusing on some of the most important aspects of a person’s life, such as residence, unity with family members, employment and social (rights) protection. These topics are at the forefront of EU integration and social policy, which this adds value to this excellently written book.