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New Forms of Social Security for Persons Moving Between the EU and the UK?

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After Brexit

Abstract

In this chapter, a short history of the UK’s integration in the EU with respect to social security is presented. Moreover, the so-called Brexit agreement is analysed, with the emphasis on family benefits arrangement and possible consequences on their coordination within the EU even after this agreement did not become applicable. Most importantly, some options for a potential relation between the EU and the UK are discussed, where special attention is paid to some actual examples of relations with other countries. The impact and consequences of such examples are looked at.

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Notes

  1. 1.

    Shaw, J. “Where does the UK belong?”, in Verschueren, H. (ed.), Residence, employment and social rights of mobile persons. On how EU law defines where they belong, Antwerpen, Intersentia, 2016, p. 12.

  2. 2.

    Treaty amending, with regard to Greenland, the Treaties establishing the European Communities, OJ L 29, 1.2.1985, pp. 1–7.

  3. 3.

    OJ L 160, 20.6.1985, pp. 7–8. See also Article 90 of Regulation (EC) 883/2004.

  4. 4.

    The UK subsequently adopted the Charter in 1998. For more on the Community Social Charter, see Bercusson, B. “The European Community’s Charter of Fundamental Social Rights of Workers”, Modern Law Review, Vol. 53 (1990), No. 5, New Perspectives on European Law, p. 624.

  5. 5.

    This included Directive 94/95 on European Works Council, Directive 97/80 on burden of proof, Directive 96/34/EC on parental leave and Directive 97/81/EC on part-time workers. HM Government, Review of the Balance of Competences between the United Kingdom and the European Union: Social and Employment Policy (Summer 2014), p. 18.

  6. 6.

    Article 48 EEC Treaty. Social security coordination was based on Article 51 EEC Treaty.

  7. 7.

    The social security regulations are accompanied by implementing regulations, that is, Regulation (EEC) 4/58 and Regulation (EEC) 574/72, respectively.

  8. 8.

    R. Cornelissen, (“50 Years of European Social Security Coordination”, European Journal of Social Security (EJSS), Vol. 11 (2009), No. 1–2), p. 25 cites the document CASSTM/59/6 of the Administrative Commission on social security for migrant workers.

  9. 9.

    Today Articles 48 and 352 TFEU.

  10. 10.

    Cornelissen, R., “50 Years of European Social Security Coordination”, European Journal of Social Security (EJSS), Vol. 11 (2009), No. 1–2, p. 26.

  11. 11.

    Ibid., p. 28.

  12. 12.

    Apart from refugees and stateless persons, who were covered also by Regulations (EEC) 3/58 and 1408/71.

  13. 13.

    Articles 78 and following TFEU.

  14. 14.

    Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality OJ L 344, 29.12.2010, p. 1.

  15. 15.

    Brussels, 19 February 2016, EUCO 1/16. The UK referendum was held on 23 June 2016.

  16. 16.

    Or the New Settlement Decision. Barnard, C.: “Could free movement of persons be confined to free movement of workers in any Brexit deal?”, http://www.cels.law.cam.ac.uk/brexitfree-movement-persons-and-new-legal-order/catherine-barnard-could-free-movement-persons-be (December 2016), p. 3.

  17. 17.

    Article 68a of Regulation (EC) 883/2004. It is interesting to observe that for family benefits, a distinction can be made between the entitling person (a child), the entitled person (one of the parents) and the receiving person (another parent or other person caring for a child). STRBAN, G. “Family benefits in the EU - is it still possible to coordinate them?”, Maastricht Journal of European and Comparative Law, Vol. 23 (2016), No. 5, p. 783.

  18. 18.

    See Case C-363/08 Slanina, EU:C:2009:732 or Case C-378/14 Trapkowski, EU:C:2015:720.

  19. 19.

    Point 2(e) of Chap. I. The United Kingdom and the European Union.

  20. 20.

    Family allowances are still mentioned in Article 15 of Regulation (EC) 883/2004.

  21. 21.

    “Advances of maintenance allowances” are recoverable advances intended to compensate for a parent’s failure to fulfil his/her legal obligation of maintenance to his/her own child, which is an obligation under family law. These advances should not be considered as a direct benefit from collective support in favour of families and the coordination rules should not apply to them anymore. Recital 36 of the Preamble to Regulation (EC) 883/2004.

  22. 22.

    Article 1(z) of Regulation (EC) 883/2004. An insertion in the annex is a constitutive element and in the case that childbirth allowances are not mentioned in this annex, they would be fully subject to the coordination rules (and thus exportable to other Member States).

  23. 23.

    In Case C-333/00, Maaheimo, EU:C:2002:641, the CJEU argued that home child-care allowance, provided by the Finish local community, is intended to meet family expenses and has to be considered as a family benefit .

  24. 24.

    Case C-75/11, Commission v Austria, EU:C:2012:605. Here, the granting of reduced fares on public transport only to students whose parents are in receipt of Austrian family allowances was contrary to EU law.

  25. 25.

    In Case C-177/12, Lachheb, EU:C:2013:689, the CJEU established that the fact that a benefit is governed by national tax law is not conclusive for the purpose of evaluating its constituent elements, which determine whether a benefit is subject to coordination or not. Hence, tax reduction (child bonus in Luxembourg) is a family benefit in social security coordination law.

  26. 26.

    Case C-303/12, Imfeld and Garcet, EU:C:2013:822 (on tax exemption for dependent children under the German tax law and the supplementary tax-free income allowance for dependent children under the Belgian tax law).

  27. 27.

    Spiegel, B. (ed), Daxkobler, K., Strban, G., Van Der Mei, A P., “Analytical report 2014: The relationship between social security coordination and taxation law”, FreSsco, European Commission, April 2015

  28. 28.

    National courts followed the arguments of the CJEU in the mentioned cases and granted the family benefit . The German Federal Central Tax Office even issued special guidelines for family benefits, that is, Bundeszentralamt für Steuern: Dienstanweisung zur Durchführung des Familienleistungsausgleichs nach dem X. Abschnitt des Einkommensteuergesetzes (DA-FamEStG) Stand 2011.

  29. 29.

    Case C-4/13, Fassbender-Firman, EU:C:2014:2344. More on anti-overlapping rule after the judgment in Case C-347/12, Wiering, EU:C:2014:300, Strban, G. “Family benefits in the EU - is it still possible to coordinate them?”, Maastricht Journal of European and Comparative Law, Vol. 23 (2016), No. 5, p. 791.

  30. 30.

    Probably yes (Fassbender-Firman EU:C:2014:2344). See Spiegel, B. (ed.), Carrascosa Bermejo, D., Henberg, A., Strban, G., “Assessment of the impact of amendments to the EU social security coordination rules on export of family benefits”, Analytical Report 2015, FreSsco, European Commission, June 2015.

  31. 31.

    Regulation (EEC) 31, and (EAEC) 11, laying down the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community, [1962] OJ P 45/1385, as amended. However, under Article 67(4) of Regulation (EEC) 31, and (EAEC) 11, adjustment only applies if family allowance is directly paid to a person other than the official to whom the custody of the child is entrusted.

  32. 32.

    Case C-41/84, Pinna, EU:C:1986:1.

  33. 33.

    Point I. (2) of the European Council Conclusions (18 and 19 February 2016).

  34. 34.

    On indexation, with practical examples, see also Spiegel, B. (ed.), Carrascosa Bermejo, D., Henberg, A., Strban, G., “Assessment of the impact of amendments to the EU social security coordination rules on export of family benefits”, Analytical Report 2015, FreSsco, European Commission, June 2015.

  35. 35.

    In Annex V to the Council Conclusions Member States should have “an option to index” such benefits to the conditions of the Member State where the child resides.

  36. 36.

    Reference could be made also to cross-border healthcare, where many go for treatment to high income Member States, including the UK, and the reason why lower income Member States cannot provide (high quality, equally accessible and sustainable) healthcare seems irrelevant (e.g. Case C-268/13, Petru, EU:C:2014:2271).

  37. 37.

    Article 4 of Chap. I of the Council Conclusions from February 2016.

  38. 38.

    European Commission, Fairness at the heart of Commission’s proposal to update EU rules on social security coordination, Brussels, 13 December 2016.

  39. 39.

    Article 3(5)(a) Regulation (EC) 883/2004.

  40. 40.

    C.f. ILO Convention 102 concerning minimum standards of social security or Council of Europe Convention on social and medical assistance.

  41. 41.

    Currently Regulation (EU) 429/2011 on freedom of movement for workers within the Union, OJ L 141, 27.5.2011, pp. 1–12.

  42. 42.

    Directive 2004/38/EC, OJ 158, 30.4.2004, pp. 77–123.

  43. 43.

    Article 24 Directive 2004/38/EC.

  44. 44.

    Articles 4 and 70 Regulation (EC) 883/204. For more on SNCBs see VERSCHUEREN, H., “Special non-contributory benefits in Regulation 1408/71, Regulation 883/2004 and the case law of the ECJ”, European Journal of Social Security (EJSS), Vol. 11 (2009), No. 1–2, p. 217; Lhernould, J-P. (ed.), Eichenhofer, E., Rennuy, N., Van Overmeiren, F., Wollenschläger, F., “Assessment of the impact of amendments to the EU social security coordination rules to clarify its relationship with Directive 2004/38/EC as regards economically inactive persons”, Analytical Report 2015, FreSsco, European Commission, June 2015, 71 p.

  45. 45.

    Case C-140/12, Brey, EU:C:2013:565.

  46. 46.

    Case C-333/13, Dano, EU:C:2014:2358. The British Daily Mail actually tracked down Ms Dano (‘The Roma gipsy who sparked a crackdown on benefit tourism: Elisabeta Dano, 25, tracked down to German city after finding herself at centre of landmark welfare case’) and published her picture, at www.dailymail.co.uk/news/article-2835442/The-Roma-gipsy-sparked-crackdown-benefit-tourism-Elisabeta-Dano-25-tracked-German-city-finding-centre-landmark-welfare-case.html#ixzz4Vr1FbLSK

  47. 47.

    Case C-67/14, Alimanovic, EU:C:2015:597.

  48. 48.

    Case C-299/14 García-Nieto and Others, EU:C:2016:114. See also the CJEU’s decision in case C-308/14, Commission v United Kingdom, EU:C:2016:436.

  49. 49.

    Verschueren, H., “Free Movement or Benefit Tourism: The Unreasonable Burden of Brey”, European Journal of Migration and Law, Vol. 16 (2014), Issue 2, pp. 147–179; Minderhoud, P., “Sufficient Resources and Residence Rights under Directive 2004/38”, in Verschueren, H. (ed.), Residence, employment and social rights of mobile persons. On how EU law defines where they belong, Antwerpen, Intersentia, 2016, pp. 47–74; Pfeil, W. J., “Social benefits for migrating unemployed persons”, Rivista del Diritto della Sicurezza Sociale (RDSS), 2016, No. 2, pp. 271–288.

  50. 50.

    Jorens, Y. (ed.), Spiegel, B. (ed.), Fillon, J-C., Strban, G., “Key challenges for the social security coordination Regulations in the perspective of 2020”, trESS Think Tank report 2013, European Commission, 2013, p. 18.

  51. 51.

    See, for example, CJEU decision in Case C-249/83, Hoeckx, EU:C:1985:139.

  52. 52.

    For more on this, see, for example, Jorens, Y. (ed.), Spiegel, B. (ed.), Fillon, J-C., Strban, G., “Key challenges for the social security coordination Regulations in the perspective of 2020”, trESS Think Tank report 2013, European Commission, 2013, p. 46.

  53. 53.

    STRBAN, G. “Family benefits in the EU – Is it still possible to coordinate them?”, Maastricht Journal of European and Comparative Law, Vol. 23 (2016), No. 5, p. 789.

  54. 54.

    Compare with the idea of N. Rennuy of gradual transition where the level of social assistance should also be adjusted in time. However, it might be required that minimum subsistence in the host Member State is provided from the day of arrival and not only gradually. On ideas of delayed transition and a pro-rata temporis solution, see N. Rennuy, “The Role of the EU Legislature, presentation at the FreSsco seminar on ‘Social Tourism’ within the EU: Legal and Practical Reflections on a Political Debate”, Leiden, 28 October 2016.

  55. 55.

    http://www.norden.org/en/om-samarbejdet-1/nordic-agreements/treaties-and-agreements/social-and-health-care/nordic-convention-on-social-assistance-and-social-services (January 2017).

  56. 56.

    http://www.norden.org/en/om-samarbejdet-1/nordic-agreements/treaties-and-agreements/social-and-health-care/nordisk-konvention-om-social-trygghet-1 (January 2017).

  57. 57.

    Case C-308/14, European Commission v UK, EU:C:2016:436 (14 June 2016).

  58. 58.

    See Agreement on European Economic Area: (OJ No L 1, 3.1.1994, p. 3) for text, see http://www.efta.int/media/documents/legal-texts/eea/the-eea-agreement/Main%20Text%20of%20the%20Agreement/EEAagreement.pdf; see also Burke, C., Isberg Hannesson, O., Bangsund, K., “Life on the Edge: EFTA and the EEA as a Future for the UK and Europe”, EPLJ, 2016, 77.

  59. 59.

    See http://www.efta.int/eea/eea-agreement/eea-basic-features#5 and NORDLING, H., “The EEA Agreement and the ‘Norway option’: integration without co-determination”, Eutopia Law 2016, https://eutopialaw.com/2016/07/05/the-eea-agreement-and-the-norway-option-integration-without-co-determination/

  60. 60.

    This does in no way imply that these domains completely fall outside the influence of EU law and policy. For example, EFTA Member States get free access to the European market for unprocessed fish products, but for processed fish products, higher tariffs apply. With regard to agricultural policy, there are rules and standards for additives.

  61. 61.

    Dhingra, S. and Sampson, T., “Life after Brexit: what are the UK’s options outside the European Union?”, Centre for Economic Performance, London School of Economics, 10. http://eprints.lse.ac.uk/66143/

  62. 62.

    See, for example, the EFTA agreement with Canada, which entered into force in July 2009, contrary to the agreement between the EU and Canada, which has not entered into force yet. For the text of this agreement, see http://www.international.gc.ca/trade-agreements-accords-commerciaux/agr-acc/eu-ue/efta.aspx?lang=eng

  63. 63.

    See, for example, Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part (L107, 28/04/2009), p. 166, which states:

    Article 46

    1. 1.

      Subject to the conditions and modalities applicable in each Member State:

      • treatment accorded to workers who are Albanian nationals and who are legally employed in the territory of a Member State shall be free of any discrimination based on nationality, as regards working conditions, remuneration or dismissal, compared to its own nationals;

      • the legally resident spouse and children of a worker legally employed in the territory of a Member State, with the exception of seasonal workers and of workers coming under bilateral Agreements within the meaning of Article 47, unless otherwise provided by such Agreements, shall have access to the labour market of that Member State, during the period of that worker’s authorised stay of employment.

    The Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part (OJ L 278, 21.10.2005, p. 9–169), for example, states:

    Article 64

    1. 1.

      The treatment accorded by each Member State to workers of Tunisian nationality employed in its territory shall be free from any discrimination based on nationality, as regards working conditions, remuneration and dismissal, relative to its own nationals.

    2. 2.

      All Tunisian workers allowed to undertake paid employment in the territory of a Member State on a temporary basis shall be covered by the provisions of paragraph 1 with regard to working conditions and remuneration.

    3. 3.

      Tunisia shall accord the same treatment to workers who are nationals of a Member State and employed in its territory.

  64. 64.

    Article 66-76 EEA Agreement.

  65. 65.

    See article 6 EEA Agreement: “Without prejudice to future developments of case law, the provisions of this Agreement, in so far as they are identical in substance to corresponding rules of the Treaty establishing the European Economic Community and the Treaty establishing the European Coal and Steel Community and to acts adopted in application of these two Treaties, shall, in their implementation and application, be interpreted in conformity with the relevant rulings of the Court of Justice of the European Communities given prior to the date of signature of this Agreement.”

  66. 66.

    See, for example, Case E-3/04, Athanasios on the E101 form (now A1 posting form): “It follows from the principle of sincere cooperation and the aims of the choice of law rules contained in Title II of Regulation 1408/71, that once form E 101 has been issued, it is binding on other Contracting Parties in so far as it establishes a presumption that the individual in question falls under the social security legislation of the issuing State (see Case C-202/97 Fitzwilliams, at paragraphs 52 to 53; and Case C-178/97 Barry Banks, at paragraphs 39 to 40). The same applies with respect to equivalent official statements. If the competent institution of the flag State doubts the correctness of the issued form, the competent institution of the State of residence is obliged to reconsider whether the form was properly issued and, if appropriate withdraw it (see Fitzwilliam, at paragraph 56; and Barry Banks, at paragraph 43). 32 In a situation, such as the one at hand, where no form E 101 has been issued, the States concerned are similarly under an obligation to ensure the correct application of the choice of law rules contained in Title II of Regulation 1408/71. That follows from the principle of sincere cooperation which is laid down in Article 3 EEA. The flag State must assess whether the conditions of Article 14b(4) of Regulation 1408/71 are fulfilled, and for that purpose evaluate other evidence presented to it, including unofficial evidence. Any other solution would impair legal certainty and thereby undermine the aims of the choice of law rules in Regulation 1408/71 and restrain the free movement of workers.” (paragraph 31–32), see http://www.eftacourt.int/cases/detail/?tx_nvcases_pi1%5Bcase_id%5D=69&cHash=57c1d80b929ecf591de1fa9537a5576e

  67. 67.

    Nordling, H., “The EEA Agreement and the ‘Norway option’: integration without co-determination”, Eutopia Law 2016, https://eutopialaw.com/2016/07/05/the-eea-agreement-and-the-norway-option-integration-without-co-determination/

  68. 68.

    Helgesen, V., “Brexit, a Norwegian View”, https://www.regjeringen.no/no/aktuelt/brexit_norway/id2402031/

  69. 69.

    Mark Stanford, King’s College http://www.telegraph.co.uk/news/2016/06/27/after-brexit-only-one-thing-can-keep-britain-together-the-norway/. See also PEERS, S., “What next after the UK vote to leave the EU?”, http://eulawanalysis.blogspot.be/

  70. 70.

    Munchau, W., “Brexit: The Norway option is the best available for the UK”, http://www.ft.com/cms/s/0/eb8dbe8c-3d0c-11e6-9f2c-36b487ebd80a.html#axzz4EOM3bgmo

  71. 71.

    “What is the single market ? How is it different from the EEA? Can the UK stay in after Brexit?” http://www.independent.co.uk/news/business/news/single-market-what-is-it-brexit-eu-referendum-eea-boris-johnson-economy-effects-a7106066.html

  72. 72.

    “BREXIT, Employment law consequences of Brexit”, Addleshaw Goddard, http://www.lexology.com/library/detail.aspx?g=1a6e17d9-abc5-4269-9ad2-ae3e086e4d52

  73. 73.

    http://eeagrants.org/Who-we-are/Norway-Grants

    For example, indirectly Norway helps to pay, through “EEA Grants”, to tackle inequalities between the different EEA Member States. In 2009–2014, the EFTA Member States reserved €993 million to even out these inequalities. 95.8% was contributed by Norway.

  74. 74.

    “How Britain voted”, https://yougov.co.uk/news/2016/06/27/how-britain-voted/

  75. 75.

    “Hard Evidence: how areas with low immigration voted mainly for Brexit”, https://theconversation.com/hard-evidence-how-areas-with-low-immigration-voted-mainly-for-brexit-62138

  76. 76.

    Theresa May stated: “When we take the big calls, we’ll think not of the powerful, but you. When we pass new laws we’ll listen not to the mighty, but to you. When it comes to taxes we’ll prioritise not the wealthy but you”, see “Theresa May appeals to centre ground but cabinet tilts to the right”, http://www.theguardian.com/politics/2016/jul/13/theresa-may-becomes-britains-prime-minister

  77. 77.

    Portes, J., “The ‘EEA minus’ option: amending not ending free movement”, http://ukandeu.ac.uk/the-eea-minus-option-amending-not-ending-free-movement/

  78. 78.

    Schulz, M., “The EU must not treat the UK as a deserter – we can negotiate without rancour”, https://www.theguardian.com/commentisfree/2016/jul/12/brexit-eu-uk-negotiate-without-rancour

  79. 79.

    Peers, S., “What next after the UK vote to leave the EU? http://eulawanalysis.blogspot.be/

  80. 80.

    Schulz, M., “The EU must not treat the UK as a deserter – we can negotiate without rancour”, https://www.theguardian.com/commentisfree/2016/jul/12/brexit-eu-uk-negotiate-without-rancour

  81. 81.

    Vahl, M., and Grolimund, N., Integration without membership: Switzerland’s Bilateral Agreements with the European Union, Brussels, Centre for European Policy Studies, 2006, 9.

  82. 82.

    Marescau, M., Bilateral Agreements concluded by the European Community, Leiden, Martinus Nijhoff Publishers, 2006, 413.

  83. 83.

    See (2002) OJ L114; other policy areas of common interest are research, public procurement, reciprocal recognition of conformity assessments, access to the market in agricultural products, and transport.

  84. 84.

    Vahl, M., and Grolimund, N., Integration without membership: Switzerland’s Bilateral Agreements with the European Union, Brussels, Centre for European Policy Studies, 2006, 78.

  85. 85.

    The European Economic Area (EEA) , Switzerland, and the North, http://www.europarl.europa.eu/atyourservice/en/displayFtu.html?ftuId=FTU_6.5.3.html

  86. 86.

    Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons—Final Act—Joint Declarations—Information relating to the entry into force of the seven Agreements with the Swiss Confederation in the sectors free movement of persons, air and land transport, public procurement, scientific and technological cooperation, mutual recognition in relation to conformity assessment, and trade in agricultural products Official Journal L 114, 30/04/2002 P. 0006 – 0072.

  87. 87.

    Felder, D., and Kaddous, C., “Accords bilatéraux Suisse – UE (Commentaires”), Basel, Helbing & Lichtenhahn, 2001, 260.

  88. 88.

    Which took a start with the case Martinez Sala (see Case 85/96, Martinez Sala, ECLI:EU:C:1998:217.

  89. 89.

    Breitenmoser, S., “Sectoral Agreement between the EC and Switzerland: contents and context”, Common Market Law Review 2003, 1162.

  90. 90.

    Article 10 of the Agreement between the EU and Switzerland on free movement of persons.

  91. 91.

    Article 10 of the Agreement: this in respect of access to an economic activity for the following two categories of residence : residence for a period of more than four months and less than one year and residence for a period equal to, or exceeding, one year.

  92. 92.

    Article 10, §4 of the Agreement between the EU and Switzerland on free movement of persons; see also Schwok, R., and Levrat, N., “Switzerland’s Relations with the EU after the Adoption of the Seven Bilateral Agreements”, European Foreign Affairs Review 2001, 338. https://www.kluwerlawonline.com/abstract.php?area=Journals&id=383251

  93. 93.

    Ibid.

  94. 94.

    Ibid.

  95. 95.

    Marescau, M., “Bilateral Agreements concluded by the European Community”, Leiden, Martinus Nijhoff Publishers, 2006, 420.

  96. 96.

    Breitenmoser, S., “Sectoral Agreement between the EC and Switzerland: contents and context”, Common Market Law Review 2003, 1160. See, for example, Article 25 of the Agreement on free movement of persons: “The seven Agreements referred to in paragraph 1 shall cease to apply six months after receipt of notification of non-renewal referred to in paragraph 2 or termination referred to in paragraph 3”.

  97. 97.

    Vahl, M., and Grolimund, N., “Integration without membership: Switzerland’s Bilateral Agreements with the European Union”, Brussels, Centre for European Policy Studies, 2006, 24.

  98. 98.

    Breitenmoser, S., “Sectoral Agreement between the EC and Switzerland: contents and context”, Common Market Law Review 2003, 1155.

  99. 99.

    Article 16, §2 Bilateral Agreement between EU and Switzerland on free movement of persons: “Insofar as the application of this Agreement involves concepts of Community law, account shall be taken of the relevant case-law of the Court of Justice of the European Communities prior to the date of its signature. Case-law after that date shall be brought to Switzerland’s attention. To ensure that the Agreement works properly, the Joint Committee shall, at the request of either Contracting Party, determine the implications of such case-law.”

  100. 100.

    Vahl, M., and Grolimund, N., “Integration without membership: Switzerland’s Bilateral Agreements with the European Union”, Brussels, Centre for European Policy Studies, 2006, 15.

  101. 101.

    Pedersen, T., “European Union and the EFTA Countries”, London, Pinter Publishers, 1994, 121.

  102. 102.

    Article 121a van de Zwitserse Grondwet.

  103. 103.

    Ambuhl, M., and Zurcher, S., “Immigration and Swiss-EU Free Movement of Persons: questions of a Safeguard Clause”, SPSR 2015, 77. See further, for example, “For us, EU-Swiss relations come as a package”, said Hannes Swoboda, a member of the European Parliament. “If Switzerland suspends immigration from the EU, it will not be able to count on all the economic and trade benefits it is currently enjoying. We will not allow […] cherry-picking”. “EU-Swiss relations in turmoil after immigration vote”, http://www.euractiv.com/section/justice-home-affairs/news/eu-swiss-relations-in-turmoil-after-immigration-vote/; https://www.theguardian.com/world/2014/feb/10/switzerland-talks-eu-immigration-referendum

  104. 104.

    http://europa.eu/rapid/press-release_MEMO-14-96_fr.htm

  105. 105.

    Carrera, S., Guild, E., and Eisele, K., “No Move without Free Movement: the EU-Swiss Controversy over quotas for free movement of persons”, CEPS Policy Brief 2015.

  106. 106.

    Chetail, V., “The Swiss vote against mass immigration and international law: A preliminary assessment”, Migration Policy Practice 2014, 13. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2426824

  107. 107.

    Chetail, V., “The Swiss vote against mass immigration and international law: A preliminary assessment”, Migration Policy Practice 2014, 14. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2426824

  108. 108.

    Dhingra, S., and Sampson, T., “Life after Brexit: what are the UK’s options outside the European Union?”, Centre for Economic Performance, London School of Economics, 6. http://eprints.lse.ac.uk/66143/

  109. 109.

    Dhingra, S., and Sampson, T., “Life after Brexit: what are the UK’s options outside the European Union?”, Centre for Economic Performance, London School of Economics, 9. http://eprints.lse.ac.uk/66143/

  110. 110.

    In a referendum in 1982, the people of Greenland expressed the desire to leave the European Community. By means of an amendment to the European Treaties, they do not apply to Greenland as from 1 February 1985 (see Treaty of 13 March 1984 amending, with regard to Greenland, the Treaties establishing the European Communities, (1985), OJ L 29/1). But Greenland remains part of Denmark and therefore falls under the association arrangements of the EC Treaty.

  111. 111.

    http://www.stat.gl/default.asp?lang=en

  112. 112.

    For the text, see http://www.stm.dk/_p_12712.html

  113. 113.

    Association of the overseas countries and territories: Article 198-204 TFEU

    Article 198 […] The purpose of association shall be to promote the economic and social development of the countries and territories and to establish close economic relations between them and the Union as a whole. […]

    Article 199 […] Association shall have the following objectives:

    1. 1.

      Member States shall apply to their trade with the countries and territories the same treatment as they accord each other pursuant to the Treaties.

    2. 2.

      Each country or territory shall apply to its trade with Member States and with the other countries and territories the same treatment as that which it applies to the European State with which is has special relations.

    3. 3.

      The Member States shall contribute to the investments required for the progressive development of these countries and territories.

    4. 4.

      For investments financed by the Union, participation in tenders and supplies shall be open on equal terms to all natural and legal persons who are nationals of a Member State or of one of the countries and territories.

    5. 5.

      In relations between Member States and the countries and territories the right of establishment of nationals and companies or firms shall be regulated in accordance with the provisions and procedures laid down in the Chapter relating to the right of establishment and on a non-discriminatory basis, subject to any special provisions laid down pursuant to Article 203.

  114. 114.

    Harhoff, F., “Greenland’s withdrawal from the European communities”, CML Rev. 1983, 13–33, https://www.kluwerlawonline.com/abstract.php?area=Journals&id=COLA1983002

  115. 115.

    Nicolaides, P., “Is Withdrawal from the European Union a Manageable Option? A Review of Economic and Legal Complexities.” http://aei.pitt.edu/58466/

  116. 116.

    Friel, R.J., “Providing a constitutional framework for withdrawal from the EU: article 59 of the draft European Constitution.” ICLQ 2004, 411.

  117. 117.

    Sarmiento, D., “Brexit or the art of ‘doing a Greenland’”, https://despiteourdifferencesblog.wordpress.com/

  118. 118.

    Pram Gad, U., “Could a ‘reverse Greenland’ arrangement keep Scotland and Northern Ireland in the EU?”, http://blogs.lse.ac.uk/europpblog/2016/07/07/reverse-greenland-arrangement/#Author

  119. 119.

    Keating, M., “How could Scotland remain in the EU?”, http://ukandeu.ac.uk/how-could-scotland-remain-in-the-eu/

  120. 120.

    O’leary, B., “Detoxifying the UK’s exit from the EU: a multi-national compromise is possible”, http://blogs.lse.ac.uk/brexitvote/2016/06/27/de-toxifying-the-uks-eu-exit-process-a-multi-national-compromise-is-possible/

  121. 121.

    “Gibraltar is dragged from Europe against its will”, http://www.economist.com/news/europe/21702147-peninsula-now-faces-uncertain-future-outside-eu-gibraltar-dragged-europe

  122. 122.

    See Agreement of September 12, 1963 establishing an Association between the EEC and Turkey ((1973) OJ C C113/1) with an additional protocol of November 23, 1970 (OJ L 293/73). Decision No 1/95 of the EC-Turkey Association Council of December 22, 1995 on implementing the final phase of the Customs Union ((1996) OJ L 35/1).

  123. 123.

    For instance, the free movement of workers is very limited. The right of Turkish nationals to move to an EU country to work depends entirely on the laws of that country. There is also no free movement of Turkish workers between EU countries. There are only some rights granted to Turkish workers who are legally employed in an EU country and who are duly registered as belonging to the labour force. (see also Additional Protocol to the Association Agreement of 23 November 1970 (OJ EC No C 113/17, 24.12.1973) and Decision 1/80 of the Association Council).

  124. 124.

    MCGOVERN, P., “Five Problems with UK immigration control post-Brexit”, http://blogs.lse.ac.uk/brexitvote/2016/07/11/five-problems-with-uk-immigration-control-post-brexit/

  125. 125.

    Ibid.

  126. 126.

    Ibid.

  127. 127.

    Ibid.

  128. 128.

    Commentary: “What would UK immigration policy look like after Brexit?”, The migration observatory at the University of Oxford, http://migrationobservatory.ox.ac.uk/commentary/what-would-uk-immigration-policy-look-after-brexit

  129. 129.

    Mcgovern, P., “Five Problems with UK immigration control post-Brexit”, http://blogs.lse.ac.uk/brexitvote/2016/07/11/five-problems-with-uk-immigration-control-post-brexit/

  130. 130.

    Commentary: “What would UK immigration policy look like after Brexit?”, The migration observatory at the University of Oxford, http://migrationobservatory.ox.ac.uk/commentary/what-would-uk-immigration-policy-look-after-brexit

  131. 131.

    Mcgovern, P., “Five Problems with UK immigration control post-Brexit”, http://blogs.lse.ac.uk/brexitvote/2016/07/11/five-problems-with-uk-immigration-control-post-brexit/

  132. 132.

    “1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

    2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

    3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

    4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it.

    A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

    5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

  133. 133.

    “Could EU citizens living in the UK claim ‘acquired rights’ if there is a full Brexit?”, Interview with Tim Eicke, Lexis PSL 2016, http://www.lexisnexis.com/uk/lexispsl/immigration/document/412012/5K4J-X7D1-DYW7-W4M6-00000-00/What-should-EEA-citizens-living-in-the-UK-do-next

  134. 134.

    Peers, S., “What next after the UK vote to leave the EU?”, http://eulawanalysis.blogspot.be/.

  135. 135.

    Ibid.

  136. 136.

    Lang, E., Hunter, I., Froud, J., Walsh, P., and Goldsworthy, J., “Brexit: Employment and Immigration Law implications”, http://www.twobirds.com/en/news/articles/2016/uk/brexit-employment-and-immigration-law-implications

  137. 137.

    Comprehensive Economic and Trade Agreement (CETA) between Canada and the European Union and its Member States signed on 30 October 2016.

  138. 138.

    The EU and Canada approved and signed CETA on 30 October 2016. In February 2017 the European Parliament approved this text. In September 2017 CETA entered into force provisionally. As such most of the agreement now applies. National parliaments have to approve CETA before it can take full effect.

  139. 139.

    “The Canadian model for trade deals”, http://www.economist.com/blogs/economist-explains/2016/06/economist-explains-26

  140. 140.

    Ibid.

  141. 141.

    The negotiations with Canada started in 2007.

  142. 142.

    See, for example, the statement by Marianne Thyssen: “vier vrijheden vormen samen de Europese interne markt” [The four freedoms together form the European internal market], http://deredactie.be/cm/vrtnieuws/videozone/programmas/terzake/2.45486?video=1.2713130

  143. 143.

    House of Lords Hansard European Union (Notification of Withdrawal) Bill, 01 March 2017, Volume 779, European Union (Notification of Withdrawal) Bill.

  144. 144.

    Independent, 14 March 2017, “EU nationals express ‘utter desperation’ following MPs rejection of Lords amendment”, author May Bulman: http://www.independent.co.uk/news/uk/home-news/brexit-eu-nationals-mps-lords-amendment-article-50-utter-desperation-commons-a7628291.html.

  145. 145.

    Guild, E. (2016) “Brexit and Social Security in the EU”, CEPS Commentary: Thinking ahead for Europe, 17 November 2016 https://www.ceps.eu/publications/brexit-and-social-security-eu.

  146. 146.

    See https://euobserver.com/uk-referendum/136569.

  147. 147.

    https://www.gov.uk/government/publications/prime-ministers-letter-to-donald-tusk-triggering-article-50/prime-ministers-letter-to-donald-tusk-triggering-article-50

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  1. Faculty of Law, Ghent University, Ghent, Belgium

    Yves Jorens

  2. Faculty of Law, University of Ljubljana, Ljubljana, Slovenia

    Grega Strban

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  1. CIDEEFF - School of Law, Univ of Lisbon, University of Lisbon, Lisbon, Portugal

    Nazaré da Costa Cabral

  2. CIDEEFF, University of Lisbon School of Law - Faculdade de Direito da Universidade de Lisboa, Alameda da Universidade - Cidade Universitária, Lisbon, Portugal

    José Renato Gonçalves

  3. CIDEEFF, University of Lisbon School of Law - Faculdade de Direito da Universidade de Lisboa, Alameda da Universidade - Cidade Universitária, Lisbon, Portugal

    Nuno Cunha Rodrigues

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Jorens, Y., Strban, G. (2017). New Forms of Social Security for Persons Moving Between the EU and the UK?. In: da Costa Cabral, N., Renato Gonçalves, J., Cunha Rodrigues, N. (eds) After Brexit. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-319-66670-9_13

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