Free Movement of Persons within the European Community: Cross-Border Access to Public Benefits

by A. Pieter Van der Mei

Overview

This book explores the extent to which European Community law confers upon individuals the right to gain access to public services in other Member States. Are European citizens and third country nationals who have moved to other Member States entitled to claim minimum subsistence benefits,to receive medical care or to be admitted to education? Does Community law provide for a freedom of movement for patients, students and persons in need of social welfare benefits? If so, to what extent does Community law have regard for the Member States' fears for, and concerns about, welfare tourism? Besides addressing numerous detailed questions on the precise degree to which Community law allows for cross-border access to public services, the author analyses how Community law, and the Court of Justice in particular, have sought to reconcile the Community's objectives of realising freedom of movement and ensuring equality of treatment with the need to develop and maintain adequate social services within the Community. In addition, the book contains a detailed analysis of United States constitutional law on cross-border access to public services, exploring the question whether the European Community can possibly learn from the American experience.

Product Details

ISBN-13:	9781841132884
Publisher:	Bloomsbury Academic
Publication date:	02/24/2003
Pages:	540
Product dimensions:	6.14(w) x 9.21(h) x 1.19(d)

About the Author

A. Pieter van der Mei is a lecturer in the Department of International and European Law at the University of Maastricht.

Table of Contents

1	Introduction	1
1	Introduction	1
2	Free Movement of Persons versus the Protection of Public Benefit Systems	2
2.1	Public Benefits	2
2.2	Welfare State Benefits: Solidarity, Territoriality and Nationality	3
2.3	Immigration Policy and the Welfare State	7
2.4	Free Movement of Persons and Cross-Border Access to Welfare State Benefits	10
3	Definition of the Subject	14
3.1	Economic Residents, Non-Economic Residents, Non-Residents and Third Country Nationals	14
3.2	Minimum Subsistence Benefits, Health Care and Education	16
3.3	The United States of America	17
3.4	Aims of the Book	18
3.5	Structure of the Book	18
2	Free Movement of Persons within the European Community and the United States: History, Legal Framework and Basic Principles	21
1	Introduction	21
2	Economic Residents	22
2.1	Free Movement of Workers: a Brief History	22
2.2	Community Workers	28
2.3	Family Members	39
2.4	Self-Employed Persons and their Family Members	41
2.5	Conclusions	42
3	Non-Economic Residents	43
3.1	Towards a General Right of Residence: A Brief History	43
3.2	Right to Reside	46
3.3	Right to Equal Treatment	48
4	Non-Residents	50
4.1	Right to Travel Freely within the Community	50
4.2	Right to Equal Treatment	52
5	Third Country Nationals	53
5.1	Introduction	53
5.2	EEA Nationals	56
5.3	Turkish Nationals	57
5.4	Maghreb Nationals	60
6	Co-ordination of Social Security Schemes: EC Regulations No 1408/71 and No 574/72	61
7	Judicial Review of National Rules and Measures under the Community Provisions on the Free Movement of Persons	68
7.1	Direct Discrimination on Grounds of Nationality	69
7.2	Indirect Discrimination on Grounds of Nationality	74
7.3	Non-Discriminatory Rules Hampering the Free Movement of Persons	77
7.4	Reverse Discrimination	80
8	The United States	82
8.1	Right to Travel: A Brief History	82
8.2	Beneficiaries and their Free Movement Rights	84
8.3	Concept of State Citizenship	87
8.4	Right to Equal Treatment: Judicial Review Under the Equal Protection Clause	87
8.5	Residents	92
8.6	Non-Residents	99
8.7	Aliens	106
9	Conclusions	113
3	Minimum Subsistence Benefits	115
1	Introduction	115
2	Minimum Subsistence Benefit Schemes and the European Community	117
2.1	Minimum Subsistence Benefit Schemes of the Member States	117
2.2	Conditions of Access	119
2.3	Application of Regulation No 1408/71 to Minimum Subsistence Benefits	121
3	Economic Residents	125
3.1	Community Workers	126
3.2	Family Members	133
3.3	Conclusions	140
4	Non-Economic Residents	140
4.1	Introduction	140
4.2	Right to Reside and Right to Claim Minimum Subsistence Benefits	141
5	Non-Residents	150
5.1	Introduction	150
5.2	Mixed Benefits	151
5.3	Social Assistance Benefits	164
5.4	Conclusions	167
6	Third Country Nationals	167
6.1	EEA Nationals	168
6.2	Maghreb Nationals	169
6.3	Turkish Nationals	173
7	Conclusions	177
8	The United States	178
8.1	The American Welfare System: A Brief Introduction	178
8.2	Conditions of Access	180
8.3	Edwards: Recognition of a Freedom of Movement for Persons in Need of Welfare Benefits	181
8.4	Residents	184
8.5	Non-Residents	196
8.6	Aliens	197
8.7	Summary and Conclusions	201
9	Towards a General Right of Residence in the European Community	203
9.1	Introduction	203
9.2	Freedom of Movement versus the Financial Stability of Social Assistance Schemes	204
9.3	Legislative Options	208
9.4	Judicial Options	214
9.5	Conclusions	219
4	Health Care	221
1	Introduction	221
2	Health Care and the European Community	222
2.1	Health Care and Health Insurance Systems of the Member States	222
2.2	Conditions of Access	226
2.3	Health Care and the Common Market	228
2.4	Regulations No 1408/71 and No 574/72: Objectives and Basic Principles of the Rules on the Co-ordination of Health Care and Health Insurance Schemes	235
3	Cross-Border Access to Health Care on the Basis of the Community Rules on the Coordination of Health Care and Health Insurance Schemes	240
3.1	Economic Residents	240
3.2	Non-Residents/Travellers	251
3.3	Non-Economic Residents	257
3.4	Third Country Nationals	263
3.5	Patient Mobility	267
3.6	Initiatives to Extend Cross-Border Health Care Rights	269
3.7	Conclusions	277
4	Cross-Border Access to Health Care on the Basis of the Treaty Provisions Governing the Common Market	278
4.1	Introduction	278
4.2	Decker and Kohll	279
4.3	Geraets-Smits and Peerbooms	289
4.4	Vanbraekel	306
4.5	Ferlini	311
4.6	National Health Services	313
4.7	Third Country Nationals	316
4.8	Conclusions	318
5	The United States	319
5.1	The American Health Care System	319
5.2	Residents	322
5.3	Non-Residents	325
5.4	Aliens	327
5.5	Lessons for the European Community?	331
6	Conclusions	332
5	Education	333
1	Introduction	333
2	Education and the European Community	337
2.1	Educational Systems of the Member States	337
2.2	Conditions of Access	339
2.3	The Common Educational Policy	340
3	Economic Residents	347
3.1	The Community's Power to Grant Educational Rights to Workers and their Family Members	347
3.2	Community Workers	349
3.3	Children of Community Workers	356
3.4	Other Family Members of Community Workers	364
3.5	Conclusions	366
4	Community Students	367
4.1	Judicial Creation of a Free Movement of Students	368
4.2	Scope of the Free Movement of Students	374
4.3	Student grants	376
4.4	Right to Reside	382
4.5	Recognition of Diplomas	385
4.6	Language Requirements	386
4.7	Family Members of Community Students	387
4.8	Education and the Concept of Service	389
4.9	Erasmus/Socrates Students	390
4.10	Student Mobility	391
4.11	Conclusions	392
5	The 'Other' Non-Economic Residents	394
6	Third Country Nationals	395
6.1	Introduction	396
6.2	EEA Nationals	397
6.3	Maghreb Nationals	398
6.4	Turkish Nationals	399
7	Conclusions	401
8	The United States	401
8.1	The American Educational System: A Brief Introduction	401
8.2	Conditions of Access	402
8.3	Non-Residents	405
8.4	Residents	408
8.5	Aliens	413
8.6	Conclusions	418
9	Future of the Free Movements of Students	422
9.1	Introduction	422
9.2	Free Movement of Students versus the Protection of Educational Systems	423
9.3	Options for Promoting Student Mobility	427
9.4	Options for Protecting the Educational Interests of the Member States	441
9.5	Conclusion	447
6	Conclusions	449
1	Introduction	449
2	Residents	450
2.1	Introduction	450
2.2	Community Workers	451
2.3	Family Members of Community Workers	454
2.4	Non-Economic Residents	457
2.5	Residence	459
2.6	Conclusions	460
3	Non-Residents	461
3.1	Introduction	461
3.2	Frontier Workers	463
3.3	Travellers	464
4	Third Country Nationals	480
5	Conclusions	483
	Bibliography	485
	Index	525

Editorial Reviews

Having a book like this in your hands brings you joy. It offers a broad and detailed overview of the extent to which European Community Law and US Constitutional Law confer upon individuals the right to gain access to public services in other (Member) States.” —European Jourbanal of Social Security

From the Publisher