Introduction to European Social Security Law
İÇİNDEKİLERTable of ContentsAbbreviations Preface PART I COORDINATION 1. Introduction: Why is Coordination Necessary? 1.1. General 1.2. The Territoriality Principle 1.3. A Definition of Coordination 1.4. Tasks of a Coordination Regulation 1.4.1. Solving Conflicts of Law 1.4.2. Unequal Treatment on the Basis of Nationality 1.4.3. Territorial Requirements for Acquiring Benefit Rights 1.4.4. Territorial Requirements for Payment of Benefit 2. A Brief Overview of Non-EU Coordination Instrument: 2.1. Treaties of the International Labour Organisation 2.2. Conventions of the Council of Europe 3. The European Union and the European Economic Are 3.1. General 3.2. Some institutional aspects of the EU 3.3. The Power of the EU to make Coordination Rules 3.4. The Extension of Coordination to the European Economic Area 4. The Structure of Regulation 1408/71 4.1. The Framework of Regulation 1408/71 4.2. The Proposal for Simplifying Regulation 1408/71 5. The Territorial Scope of Regulation 1408/71 TABLE OF CONTENTS 6. The Personal Scope of Regulation 1408/71 6.1. Introduction 6.2. The Terms 'Employed Person' and 'Self-employed Person' 6.2.1. General 6.2.2. The Meaning of 'Employed Person' 6.2.3. The Meaning of 'Self-employed Person' 6.2.4. How can Employed and Self-employed Persons be Distinguished in General Schemes? 6.2.5. Insurance under one Branch of Social Security Suffices to Fall within the Scope of the Regulation 6.2.6. Some Exceptions to the Possibility to Invoke the Whole Regulation 6.2.7. Voluntary Insurance 6.2.8. Students 6.2.9. Civil Servants 6.3. When do Employees or Self-employed Persons Fall under the Regulation? 6.3.1. Introduction 6.3.2. The Legislation is or has been Applicable 6.3.3. Part-time Workers 6.3.4. Nationality Conditions 6.3.5. Proposals for Extension of the Personal Scope 6.4. Members of the Family and Survivors 7. The Material Scope of Regulation 1408/71 7.1. Introduction 7.2. The Term 'Legislation' 7.3. Exclusion of Benefits for Victims of War 7.4. Special Schemes for Civil Servants 7.5. The Proposal for Simplification 7.6. The Exclusion of Social Assistance 7.7. Special Non-Contributory Benefits 8. The General Rules for Determining the Legislation Applicable 8.1. Introduction 8.2. The Exclusive and Binding Effect of Rules for Determining the Legislation applicable 8.2.1. Exclusive Effect 8.2.2. Binding Effect 8.2.3. The Doctrine of Practical Effect The Inescapability of the Rules for Determining the Applicable Legislation The Legislation Applicable for Persons who Ceased All Occupational Activities No Rules for Determining the Applicable Legislation for Students Rules for Determining the Applicable Legislation in More Complicated Situations The Rules for Special Non-Contributory Benefits Gaps in the Rules for Determining the Applicable Legislation The Proposal for Simplification General Non-Active Persons Working in Two Member States Working in One State as Employee and in the Other as Self-Employed Posting Posting of Employees Posting of Self-Employed Persons Demarcation Problems Posting by a Temporary Employment Agency The Relevance of a Posting Certificate Posting on the Basis of Article 17 The Proposal for Simplification The Equal Treatment Provisions in the Treaty and in Regulation 1408/71 Introduction The Equal Treatment Provision of Article 39 EC The Regulation Must be Consistent with Article 39 EC Article 3 of Regulation 1408/71 Prohibition of Direct and Indirect Discrimination Members of the family and Survivors The Proposal for Simplification Article 43 EC Extension of the Non-Discrimination Clause to All Citizens: Article 12 EC 11. The Equal Treatment Provisions of Regulation 1612/68 11.1. Introduction 11.2. The Personal Scope 11.2.1. The Meaning of Employee 11.2.2. Members of the Family 11.3. The Material Scope 11.4. The Non-Discrimination Provision 11.5. The Relationship between Regulation 1408/71 and Regulation 1612/68 12. Residence Requirements 12.1. Introduction 12.2. Article 10 of Regulation 1408/71 12.3. Residence Requirements and Transitional Advantages 12.4. Residence Requirements and Hybrid Benefits 12.5. Export of Unemployment Benefits 13. The General Rules against Overlapping 13.1. Introduction 13.2. The Relation between Community Overlapping Rules and National Overlapping Rules 14. Sickness and Maternity Benefits 14.1. The Term 'Sickness Benefit' 14.2. Aggregation Rules 14.3. Illness Existed Already before the Beginning of the Insurance 14.4. Overruling of Residence Requirements 14.4.1. Introduction 14.4.2. The Rules on Persons not Living in the Competent State 14.4.3. Special Rules on Frontier workers 14.4.4. Claiming and Supervision Procedures 14.5. Students 14.6. Categories of Persons not in Employment 14.6.1. Unemployed Persons and Members of their Family 14.6.2. Pensioners and Members of Their Family 14.6.3. Levying Contributions on Pensioners 14.7. Temporary Stay outside the Competent State 14.8. The Relation between Article 22 and Articles 30 and 49 EC 14.9. The Compensation of Costs 14.10. Calculation of Benefits TABLE OF CON 15. Invalidity, Survivors' and Old-Age "Pensions 15.1. Introduction 15.2. The Structure of the Coordination of Long-Terms Benefits 15.3. A Person has been Exclusively Subject to Type A Schemes 15.3.1. Introduction 15.3.2. After-Effect 15.3.3. Rules of Aggregation 15.4. A Person has been Subject to At Least One Type B Scheme 15.4.1. Aggregation of Periods of Insurance 15.4.2. Coordination Problems Due to the Combination of Insurance in Type A and Type B Schemes 15.5. Determining Incapacity for Work 15.5.1. Administrative Checks and Medical Examinations 15.6. Calculation of the Amount of Pensions if at Least One Type B Scheme is Involved 15.6.1 Introduction 15.6.2. The Calculation of Proportioned Pensions 15.7. The Rules Against the Overlapping of Benefits 15.7.1. The History of the Community Rules Against Overlapping 15.7.2. The Rules against Overlapping at Present in Force 15.7.2.1. General 15.7.2.2. The General Conditions on Overlapping 15.7.2.3. Overlapping of Benefits of the Same Kind 15.7.2.4. Overlapping of Benefits of the Same Kind with Benefits of a Different Kind 15.8. Recalculation of Benefits 15.9. Acquisition of Pensions Rights by the Unemployed 15.10. Transitional Provisions 15.11. The Relationship between International Conventions and the Regulation 15.12 The Proposal for Simplification 16. Family Benefits and Family Allowances 16.1. The Terms 'Family Benefits' and 'Family Allowances' 16.2. Which Benefit Level: that of the State of Employment or Residence? 16.3. Overruling of Residence Requirements 16.4. Priority rules 16.4.1. Introduction 16.4.2. Both Parents are Engaged in Work 16.4.3. One of the Schemes Involved does not Relate Entitlement to Occupational Activities 16.4.4. The Relationship between the General Rules for the Determination of the Applicable Legislation and Articles 76 and 10 16.4.5. Children Residing in a State Other than the Parents' State of Employment 16.5. Family Allowances for Pensioners and Orphans' Allowances 16.5.1. Introduction 16.5.2. The Rules against Overlapping Applicable to Family Benefits for Pensioners and other Allowances 16.5.3. Orphans' Benefits 16.6. Conclusion 17. Unemployment Benefits 17.1. The Term 'Unemployment Benefits' 17.2. Overview of the Rules Determining the Applicable Legislation 17.3. The Unemployed Person Lives in the Competent State 17.4. The Unemployed Person is a Frontier Worker 17.5. Persons Other than Frontier Workers who do not Reside in the Competent State 17.6. Miethe Cases 17.7. Special Rules for Civil Servants 17.8. The Consequences of a Change of Choice of State 17.9. The Calculation of Unemployment Benefit 17.10. Export of Unemployment Benefits 17.11. Proposals for Simplification 18. The Relation between the Regulation and Other Treaties 18.1. Introduction 18.2. Infringement on Social Security Advantages Acquired on the Basis of International Treaties 19. Agreements of the EU with Third Countries 19.1. Association Agreements with the Maghreb States 19.2. Decision 3/80 of the Association Council EC-Turkey 19.3. Association Agreements with Central and Eastern European Countries 20. The Directive on Safeguarding Supplementary Pension Rights 20.1. Introduction 20.2. The Directive on Safeguarding the Supplementary Pension Rights 21. Some Conclusions on the Development of Coordination Law 21.1. Introduction 21.2. The Meaning of Coordination on the Basis of the Regulation 21.3. The Impact of the Treaty 21.4. Is the State of Employment Principle still Appropriate for Coordination? 21.4.1. The Background of the State of Employment Principle 21.4.2. Can the State of Residence Principle be an Alternative to the State of Employment Principle? 21.4.3. The State of Employment Principle and Prevention of Unfair Competition 21.4.4. The State of Employment Principle and Discrimination 21.4.5. The State of Residence Principle and Benefit Tourism 21.4.6. Is there a Need for a Special Coordination Rule for Schemes Based on Residence? 21.4.7. Conclusions 21.5. Regulation 1408/71 and the Room for Manipulation of the Facts 21.5.1. Introduction 21.5.2. The Insured Person Wishes to Remain Insured in the State of Residence 21.5.3. Trying to Escape Payments to Self-Employed Schemes: Taking up Work as an Employed Person 21.5.4. How to Assess the Room for Manipulation of the Facts? 21.6. The Position of the Self-Employed 21.7. Conclusions PART II HARMONISATION 22. Hannonisation Initiatives Of Non-EU Organisations 22.1. What is Harmonisation? 22.2. The International Labour Organisation 22.3. The Council of Europe 23. Harmonisation Initiatives of the European Union 23.1. The Power to Take Harmonisation Initiatives 23.2. Title XI on Social Policy 23.3. The Recommendations Concerning Social Benefits 23.3.1. Introduction 23.3.2. Recommendations concerning Minimum Benefits and Convergence 23.3.2.1. Common Criteria concerning Sufficient Resources and Social Assistance Protection Systems 23.3.2.2. Convergence of Social Protection Objectives and Policies 23.4. Harmonisation Scenarios in the EU 23.4.1. The Thirteenth State Scheme 23.4.2. The European Social Snake 24. Equal Pay for Men and Women: Article 141 EC 24.1. Introduction 24.2. Article 141 and Occupational Pensions 24.3. Limitation of the Temporal Effect of the Barber Judgment 24.4. Limitation in Time in the Case of Widowers Pensions and Age Discrimination 24.5. Retroactive Effect in Other Cases of Unequal Treatment 24.6. The Meaning of the Term 'Pay' 25. Equal Treatment in Statutory Social Security: Directive 79/7 25.1. Introduction 25.2. The Personal Scope of Directive 79/7 25.3. The Material Scope of Directive 79/7 25.4. The Relationship of Directive 79/7 to Article 141 EC 25.5. The Equal Treatment Rule of Directive 79/7 25.5.1. Introduction 25.5.2 The Direct Effect of Directive 79/7 25.5.3. Prohibition of the Effects of a Former Discriminatory Rule 25.5.4. Procedural Limitations for Realizing Equal Treatment 25.5.5. Indirect Discrimination 25.5.6. The Article 7 Exception 25.6. Conclusion 26. Equal Treatment of Men and Women: The Other Directives 26.1. Directive 86/378 26.1.1. Introduction 26.1.2. The Personal Scope of Directive 86/378 26.1.3. The Material Scope of Directive 86/378 26.1.4. The Principle of Equal Treatment in Directive 86/378 26.1.5. The Exceptions to the Principle of Equal Treatment 26.2. Directive 86/613 for the Self-employed 26.2.1. Introduction 26.2.2. The Personal Scope of Directive 86/613 26.2.3. The Material Scope of Directive 86/613 26.2.4. The Principle of Equal Treatment 26.3. Proposal for a Directive Completing the Principle of Equal Treatment 26.3.1. Introduction 26.3.2. The Personal Scope of the Draft Directive 26.3.3. The Material Scope of the Draft Directive 26.3.4. The Principle of Equal Treatment 27. Towards a Social Europe? Bibliography Table of cases Index on cases Subject index  |
