european disability forum
Free Movement of Disabled
People in the European Union
An examination of relevant
Community provisions and a discussion
of the barriers to free movement
Doc. EDF-99/11 30.11.99
"States should recognise the rights of organisations of persons with disabilities to represent persons with disabilities at national, regional and local levels. States should also recognise the advisory role of organisations of persons with disabilities in decision-making on disability matters."
Rule 18 of the United Nations Standard Rules on the Equalisation of Opportunities for Persons with Disabilities:
Doc EDF 99/11 " Free Movement of Disabled People in the European Union - An examination of relevant Community provisions and a discussion of the barriers to free movement.”
by
Lisa Waddington and Anne Pieter van der Mei, Lecturers in European Union Law, Maastricht University (NL). The drafting of this paper has been financially supported by Fundacíon ONCE.
The document is available in English, on diskette and on the EDF Website at: http://www.edf-feph.org
(Printed on recycled paper.)
© Copyright European Disability Forum 1999. This document may be quoted and reproduced, provided the source is given.
Table of Contents
Guide to Contents 5
1 Introduction 9
2 Free Movement of Persons within the European Community 11
2.1 Economic Residents: Workers and their Families 11
2.2 Non-Economic Residents: Students, Retired People, People with an Income 15
2.3 Non-Residents or Travellers: Tourists, Patients and Business People 16
2.4 Exceptions to the Right of Free Movement on the Grounds of Public Policy, Public Security and Public Health 17
3 Social Security Rights 19
3.1 Regulations No 1408/71 and No 574/72: Objective and Basic Principles 19
3.2 Medical Care 21
3.3 Cash Benefits in the Case of Sickness 24
3.4 Minimum Subsistence Benefits to People with a Disability 26
3.5 Invalidity Pensions 28
4 Barriers to the Free Movement of People with Disabilities 31
4.1 Barriers to Free Movement presented by Community Law - Indirect or De Facto Discrimination against People with Disabilities 31
4.2 Non Legal barriers to the Free Movement of People with Disabilities 34
5. Proposals for Action 38
Annex I The Disabled Person as a Community "worker": the Situation post-Bettray and Birden 40
A.1. Introduction: The Interpretation of the Concept of Community "Worker" by the European Court of Justice 40
A.2 Bettray v. Staatssecretaris van Justitie 41
A.3 Birden v Stadtgemeinde Bremen 44
A.4 Consequences of the Judgments for other Migrant Workers with a Disability 46
Annex II: About the EDF and other relevant documents 48
Guide to Contents
This paper examines the European Community right of free movement from a disability perspective. The first part of the paper explains the basic rules relating to free movement of persons. This is followed by an analysis of the barriers which continue to present themselves to people with disabilities who seek to move to another Member State, including the legal barriers created by Community law. Finally the paper contains some proposals for action which could be taken at the Community level which could help to facilitate the free movement of people with disabilities.
Since the paper contains a great deal of information about Community law, and the impact of this law on people with disabilities, it is unfortunately not possible to briefly summarise the contents. Instead, this introductory note informs the reader of the various topics covered in the paper, and will assist the reader to select the section(s) most relevant.
1 Introduction
This section briefly outlines the principle of free movement in Community law and the reasons why it is sometimes difficult for people with disabilities to exercise this right.
2 Free Movement of Persons within the European Community
Section 2 examines the right to live in and travel to another Member State.
The introduction to this section explains that it is necessary to make distinctions between different categories of EC nationals, e.g. residents and non-residents, workers and non-economic residents, in order to understand the Community rules related to free movement.
2.1 Economic Residents: Workers and their Families
This section covers the right of free movement for workers and their families. The section covers:
- the right to live in the State of employment
- the right to be treated in the same way as nationals (equal treatment)
- who qualifies as a Community worker
- the rights of workers to be joined by family members in the Member State where they work / reside.
2.2 Non-Economic residents: Students, Retired People, People with an Income
This section covers the right of free movement (primarily the right to live in another Member State) for non-economic residents (people who do not work).
2.3 Non-residents or Travellers: Tourists, Patients and Business People
This section covers the right of free movement for those people who merely wish to visit or travel to another Member State.
2.4 Exceptions to the Right of Free Movement on the Grounds of Public Policy, Public Security and Public Health
This section examines the grounds on which a Member State can lawfully refuse entry to, or expel, a national from another Member State.
3 Social Security Rights
Section 3 examines the right to claim social security and receive medical treatment whilst living in or visiting another Member State. The key question in all these cases is whether the level of benefit is determined by the original Member State of residence (usually also the Member State of which the claimant is a national) or by the (new) Member State of residence (or Member State which is being visited).
3.1 Regulations No. 1408/71 and No 574/72: Objective and Basic Principles
This section explains the general rules relating to claiming social security benefits for an individual living in or visiting another Member State. It is noted that the Community Regulations are based on four basic principles.
3.2 Medical Care
This section explains the rules relating to accessing medical treatment whilst visting another Member State. Is emergency treatment available? Who has to pay for treatment received? Who determines what treatment can be received? Can an individual travel to another Member State in order to receive treatment, e.g. because the treatment is better or quicker in the other Member State? The section covers:
- Basic Principles
- Right to Receive Medical Treatment in other Member States
- The need for Prior Authorization from a Public Health Insurance Body
- Recent key developments in the case law of the European Court of Justice
3.3 Cash Benefits in the Case of Sickness
This section examines the right to claim cash benefits designed to compensate workers for loss of earnings caused by illness or disability. This section also covers the right to receive personal assistance and the right to a financial benefits to employ an personal assistant. In addition the section covers the rules relating to medical examinations for beneficiaries who (temporarily) live outside the Member State providing the benefit.
3.4 Minimum Subsistence Benefits for People with Disabilities
This section examines whether minimum subsistence benefits can be claimed by an individual who has moved to another Member State.
3.5 Invalidity Pensions
This sections explains the complicated rules related to invalidity pensions. The section covers the situation of those who have worked in more than one Member State and have therefore contributed to more than one national social security schemes (responsible for providing the pension).
4 Barriers to the Free Movement of People with Disabilities
This section reflects on the barriers to the free movement of people with disabilities.
4.1 Barriers to Free Movement presented by Community Law - Indirect or De Facto Discrimination against People with Disabilities
The following barriers are discussed:
- The notion of Community worker
- need to work a certain number of hours to qualify as a Community worker.
- people who are engaged in work containing an element of rehabilitation are not Community workers.
- Limitations associated with the Right to be Joined by Families Members and Unpaid Assistants / Carers.
4.2 Non Legal Barriers to the Free Movement of People with Disabilities
The following barriers are discussed:
- Transport
- Discrimination on the job market
- Housing
- Public Support and assistance: Social Security, Support for Independent Living and Technical Aids.
This section suggests areas in which the Community could take action to facilitate the free movement of people with disabilities.
Annex - Analysis of the Bettray and Birden Cases of the European Court of Justice
The annex examines in some detail two important cases concerning the notion of Community worker.
1 Introduction
The European Community Treaty guarantees to all citizens of the European Union (i.e. all nationals of a Member State of the European Union) the right of free movement throughout the Union. Originally this right was limited to workers and their immediate families. However, over the years the right has been expanded to cover practically all EU citizens. The right consists not only of the right to live and work in other Member States, but also the right to study or retire and the right to travel to other Member States. These rights are not only guaranteed by the Treaty, but also in numerous other pieces of Community legislation which oblige Member States to allow nationals of other Member States to visit and live in their country. The right of free movement is therefore very broad and quite fundamental within the Community legal order.
People with disabilities who are EU citizens are naturally also entitled to the right of free movement. Community law does not (intentionally) seek to deny this right to people with disabilities. However, in practice it can be very difficult for some people with disabilities and their families to effectively exercise this right. This is because:
the rules designed to guarantee the right of free movement were not designed with people with disabilities in mind, and the particular barriers which present themselves to such people were overlooked and left unregulated, and
to a lesser extent, the rules in question sometimes indirectly discriminate against people with disabilities, making it more difficult for such people to exercise the right of free movement.
For these reasons organisations representing the interests of people with disabilities have been concerned, for some time, that many people with disabilities are effectively being denied their right to free movement within the European Union, or are facing many extra barriers when they seek to exercise this right.
This paper will consider the right of free movement from a disability perspective. The first part of the paper explains the basic rules relating to free movement of persons. This is followed by an analysis of the barriers which continue to present themselves to people with disabilities who seek to move to another Member State, including the legal barriers created by Community law. Finally the paper contains some proposals for action which could be taken at the Community level which could help to facilitate the free movement of people with disabilities.
2 Free Movement of Persons within the European Community
In order to understand the Community rules governing the free movement of persons it is necessary to make a distinction between:
EC nationals who (wish to) live in another Member State (residents), and
EC nationals who merely (wish to) visit or travel to other States (non-residents or travellers).
Among the residents a further distinction has to be made between:
employed and self-employed persons who move to another Member State to work, and;
EC nationals who live in another Member State for other (non-economic) reasons, e.g. study or retirement.
2.1 Economic Residents: Workers and their Families
Article 39 (formerly 48[1]) of the European Community Treaty gives all EC nationals the right to look for, to accept and to take up employment in another Member States under the same conditions as the nationals of the State concerned.[2]
In order to make it easier for people to take up employment in another Member State, Article 39 confers upon EC nationals a whole set of related rights. These include:
2.1.1 The right to live in the State of employment
This right is granted by Article 39(3) EC Treaty; the conditions under which the right can be exercised are laid down in Directive No 68/360.[3] The right of residence can be temporary or permanent. Workers who are employed for less than a year have the right to reside in the Member State (which is referred to as the host State) whilst they are employed there. Workers who have found work which is expected to last for more than a year have the right to live in the Member State for five years. If, after five years, the worker is still in employment, s/he obtains the right to live in the host State permanently.
Voluntary unemployment, e.g. resigning from one's job, leads to the loss of the right to live in the host Member State; involuntary unemployment does not. Community workers who have ended their working-career definitively because they now have a "permanent incapacity to work" or retire are (under certain conditions) entitled to live in the host Member State permanently.[4]
2.1.2 The right to be treated in the same way as nationals (equal treatment)
From the moment a worker takes up employment s/he has a right to be treated in exactly the same way as the nationals of the host State. This right is secured by Article 39(2) of the Treaty and worked out in further detail in Regulation No 1612/68.
Equality of treatment is not only granted as regards work-related matters (e.g. pay, laws on dismissal, conditions of work, trade union rights ..etc.), but also as regards training, public housing, taxation, access to "social advantages", as well as to all rights or benefits which are essential to the worker's "well-being" and which can be regarded as related to the right to freedom of movement.[5]
The term "social advantages" is a legal term found in Article 7(2) of Regulation No 1612/68.
The European Court of Justice, which has the task of interpreting Community law, has interpreted the concept of "social advantages" to cover all rights or benefits which are granted to workers "primarily because of their objective status as workers or by virtue of the mere fact of their residence on the national territory" and which may encourage the free movement of workers within the Community.[6] In applying this definition, the Court has defined numerous social security(-like) benefits (including benefits for people with disabilities[7]), student financial aid[8] and benefits to cover funeral expenses[9] as social advantages. Virtually all socio-economic benefits are covered by the right to equal treatment. This means that where nationals are entitled to receive these benefits, Community workers are also entitled to receive them. Only certain rights which are linked to the possession of the nationality of the host State, such as the right to vote and stand as a candidate in national elections, benefits linked to the performance of military service[10] and access to certain posts in the civil service, are excluded.[11]