Swedish case

AEAJ Workshop on Access to administrative jurisdiction in order to seek fundamental rights
Palermo 12 – 13 November 2009-09-02

Swedish case: Free movement for employees of the European Community Institutions

Legal context

Chapter 4 of the Swedish law on the general social security scheme lays down provisions on parental benefits. Parental benefit is paid to parents by reason of the birth of a child for a maximum of 450 days and can be paid at any time until the child reaches the age of 8 or completes his or her first year at school, if that should be later.

Chapter 4:6 provides that the total minimum of the parental benefit is (at the time) 60 SKR (6 euros) per day (the guaranteed amount). It also provides that, for the first 180 days, the parental benefit is paid out at the same rate as daily sickness benefit, if the parent concerned had sickness insurance cover providing for sickness benefit of more than the guaranteed amount for at least 240 consecutive days before the birth or the due day date of birth.

Under Chapter 3:2 daily sickness benefit is based on the annual income the insured can currently expect to receive for work he does in Sweden – which usually is much more than 60 SKR per day.

The facts of the case

After working at the Court of Justice of the European Communities from 1995 to 2000 Mr UL, who is a Swedish national, returned to Sweden. He is the father of a child born on 22 September 1999.

The Stockholm social insurance office refused in two decisions 2002 to pay Mr UL parental benefit in relation to daily sickness allowance for the first 180 days of his parental leave, on the ground that, during the period prior to the birth of his child, he was employed by the Court of Justice in Luxemburg and was thus not insured by the national sickness insurance scheme for the sickness benefits above the guaranteed amount for at least 240 consecutive days immediately before the date of birth.

Mr UL brought an action against those decisions before the County Administrative Court in Stockholm.

The arguments before the court

Both parties agreed that the Regulation 1408/71 was not applicable in this case because UL belonged to the Joint Sickness Insurance Scheme of the European Communities.

UL claimed that the Swedish legislation was not compatible with EC law. The demand that a parent must have been insured at least 240 days before the birth of the child – and that employment at the EU institutions could not be taken into account in this period – was discriminating towards migrating workers. In practice, a parent must have lived and been insured in Sweden for 8 months before the birth of the child in order to have the right to parental benefit above the minimum niveau. It is contrary to the general EU principles of the right for men and women to combine parenthood and working life, and also contrary to Articles 12 (all discrimination according to nationality is forbidden), 17 (2) (Union citizens have rights and obligations according to the EC Treaty), 18 (every Union Citizen has the right to free movement within the Union) and 39 EC ( Free movement of workers within the Union must be ensured, all discrimination of workers according to nationality should be abolished regarding working conditions etc), Article 7(1) and 7 (2) of Regulation 1612/68 on free movement for workers within the EU and to the Council Directive 96/34/EC on the framework agreement on parental leave, concluded by UNICE, CEEP and ETUC. As a secondary ground UL claimed that it must be taken into account that he did not get any parental leave at the Court of Justice in Luxemburg.

The social insurance office reasoned as follows.

The Regulation 1612/68 is the basic act regarding the free movement for workers. As a complement to these rules there are the rules on social security in Regulations 1408/71 and 572/72. They are aiming at coordinating the legislations on social insurance in the member states. The Swedish parental benefit is a family benefit according to a judgment from the Court of Justice (C-275/96). Article 72 in 1408/71 has rules on cumulating insurance periods and employment periods when deciding the right to family benefits. But, an employee at the Court of Justice does not belong to a national legislation on social security. Therefore, UL:s employment at the Court of Justice is not a period that can be cumulated according to 1408/71.

The County Administrative Court asked for a statement from the National Social Insurance Board. The Board said a follows:

The case regards a Swedish citizen who was living in Sweden at the time for claiming the parental benefit. The Regulation 1612/68 is therefore not applicable. Article 39 in the EC Treaty is not relevant because the question of the level of the parental benefit is not such working condition that is mentioned in the Article.

Swedish case - solution

The County Administrative Court in Stockholm made a reference for a preliminary ruling to the Court of Justice and referred the following questions:

Is a requirement in national legislation that a parent have been resident and be covered by health insurance in the Member State in question for at least 240 days prior to the child’s birth in order to be entitled to parental benefit in accordance with the parent’s sickness benefit compatible with Articles 12, 17 (2), 18 and 39 EC, Article 7 (1) and 7 (2) of Regulation 1612/68 and Directive 96/34?
If question (1) is answered in the affirmative: does Community Law require that, in the determination of whether the worker fulfils the qualification period for insurance under national law, there must be cumulation with a period during which the worker was covered by the Joint Sickness insurance scheme pursuant to the Staff Regulations of Officials of the European Communities?

The Swedish government submitted that the Swedish law in question was based on objective considerations which are independent of the nationality of the persons concerned and proportionate to the objective which it legitimately pursues of combating abuse as regards the application of the principle of aggregation of insured periods. According to the Swedish government, granting parental benefit which is greater than that guaranteed to migrant workers who have been employed within an institution of the European Union would place a considerable financial burden on national social security schemes in such a way that Member States which, like the Kingdom of Sweden, pay a higher amount of parental benefit could be forced to reduce those amounts.

The Court reformulated the questions from the National court as follows: The national court is essentially asking whether, where national rules such as those at issue in the main proceedings apply, Community law and the provisions on the freedom of movement of persons in particular must be interpreted as meaning that the working period during which a worker was affiliated to the Joint Sickness Insurance Scheme of the European Communities must be taken into account.

The Court of Justice gave the following judgement (here somewhat shortened):

Any community national who, irrespective of his place of residence and his nationality, has exercised the right to freedom of movement for workers and who has been employed in a member state other than that of residence falls within the scope of Article 39 EC.

In addition, it must be pointed out that an official of the European Communities has the status of a migrant worker and that he does not lose his status of worker within the meaning of Article 39 (1) EC through occupying a post within an international organisation, even if the rules relating to his entry into and residence in the country in which he is employed are specifically governed by an international agreement.

It follows that a worker, such as Mr UL, who is a national of a member state may not be refused the rights and social advantages which Article 39 EC affords him.

National legislation which does not take into account, for the calculation of the amount of parental benefit, periods of employment completed under the Joint Sickness Insurance Scheme of the European Communities is likely to dissuade citizens of a Member State from working within an institution of the European Union situated in another Member State since by accepting employment with such an institution they lose the right to benefit under the national sickness insurance scheme from family benefits to which they would have been entitled had they not accepted that employment.

Consequently, national legislation such as that in dispute in this case, constitutes a barrier to the free movement of workers which is, as a rule, prohibited by Article 39 C.

It is however necessary to examine whether that barrier can be justified in the light of the provisions of the Treaty.

The Swedish government submits (se above)…

In that regard, considerations of a purely economic nature do not justify infringements of individual rights deriving from provisions of the Treaty enshrining the freedom of movements of workers. There is no analysis of the appropriateness and proportionality of the restrictive measure. The Swedish Government merely alludes, without providing any precise element to substantiate its arguments, to a hypothetical financial burden which would be put on the national social security scheme if the period of employment carried out by a migrant worker under the Joint Sickness Insurance Scheme of the European Communities.

In the light of the above considerations it is not necessary that the Court give judgement on the interpretation of the other articles or of Regulation 1612/68 or Directive 96/34.

The answer to the referred questions then must be that the Article 39 EC is to be interpreted as meaning that, where national legislation such as that at issue in the main proceedings applies, the period during which a worker was affiliated to the Joint Sickness Insurance Scheme of the European Communities must be taken into account.

The County Administrative Court in Stockholm took the period during which UL was affiliated to the Joint Sickness Insurance Scheme of the European Communities into account, reversed the decision of the Social Insurance Office and declared that UL was entitled to parental benefit during the first 180 days of his parental leave with the same rate as his sickness benefit.

The Social Insurance Office lodged a complaint to the Administrative Court of Appeal but later withdrew it.