Volume 50 (2013) / Issue 5
The ECJ grants migrant citizens an increasingly wide access to the social security schemes of Member States lacking competence. This line of case law is conceptualized as creating a parallel system of social security coordination. Its foundations lie in the doctrine of pre-emption and the case law on Union citizenship, both of which remodel the constitutional relationship between the free movement provisions of the TFEU on the one hand, and, on the other, secondary EU legislation (in particular Regulations 1408/71 and 883/2004) and national law. The system adds a layer of social security protection for migrants under the legislation of Member States with which they have a privileged connection. As a corollary, it imposes additional duties upon these States, which until recently were entirely free of social security responsibilities. The uncertain position of the employer generates a tension between the freedom to provide services and the free movement of workers.
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