European Welfare Agreement

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  • Signatory and ratification states of the European Welfare Agreement

    • The European Welfare Agreement ( EFA ), as a contract with ETS no. 014 signed by the members of the Council of Europe on December 11, 1953 in Paris , regulates the receipt of welfare benefits by nationals who are lawfully residing in the territory of another signatory state. The undersigned states undertake to provide welfare benefits in the same way and under the same conditions as their own nationals, as provided for in the applicable legislation.

    The EFA has so far been signed and ratified by 18 Council of Europe states. These countries are: Belgium , Denmark (excluding the Faroe Islands and Greenland ), Germany , Estonia , France , Greece , Ireland , Iceland , Italy , Luxembourg , Malta , the Netherlands , Norway , Portugal , Sweden , Spain , Turkey and the United Kingdom (As of January 2018). These are all countries that belonged to the European Union before 2004 , with the exception of Austria and Finland , as well as Estonia, Malta, Turkey, Iceland and Norway.

    Germany

    social care

    For the receipt of social assistance in Germany , this means that foreigners legally living in Germany from a country that has signed this agreement have the same social rights as Germans.

    In 1966, Germany and Austria concluded the bilateral agreement between the Federal Republic of Germany and the Republic of Austria on welfare and youth welfare .

    Basic security for job seekers

    The prerequisites for the right to equal treatment according to Art. 1 EFA also apply to unemployment benefit II . According to the case law of the Federal Social Court (BSG), subsistence benefits according to Book Two of the Social Code are welfare benefits within the meaning of the EFA. According to this judgment of the BSG, according to Der Paritätische , due to Article 1 of the EFA, unemployment benefit II and the support for subsistence according to SGB XII must also be granted to the citizens of the signatory states of the EFA - even if they are only for the purpose of looking for work or within stay in Germany for the first three months.

    In December 2011 the Federal Government declared a reservation for SGB II based on Art. 16 letter b) EFA. Thereafter, the applicability of the EFA to persons who are nationals of the other contracting parties and who are seeking basic security benefits for jobseekers in Germany should no longer be possible. The reservation came into force on December 19, 2011. The purpose of the reservation is to prevent the immigration of EU citizens from southern European countries, in which there is a very high unemployment rate in the course of the financial crisis from 2007 - especially the euro crisis - and thus an "immigration into the social systems".

    An expert opinion by the Scientific Service of the German Bundestag came to the conclusion that a reservation against the new legal situation was not effectively possible. Neither SGB II nor the case law of the Federal Social Court are a “new law” within the meaning of the agreement against which such a reservation can be made. Based on this report, the State Social Court of Berlin-Brandenburg decided in May 2012 in a ruling in interim legal protection proceedings that a Spaniard who stays in Germany for more than three months, based on the EFA, benefits under SGB II are to be granted. The reservation made by the federal government does not effectively exclude the person concerned from the benefits, because this was not communicated at the same time as SGB II was announced, but only afterwards in response to the case law of the Federal Social Court. The Berlin Social Court had previously held the reservation to be ineffective because there was no parliamentary law authorizing it. The German Lawyers Association ( DAV ) considers the reservation to be contrary to international law within the meaning of Art. 19 lit. c of the Vienna Convention on the Law of Contracts (VVK).

    Since this is a Council of Europe agreement, the declaration of reservation has no effect on claims under social law of the European Union. It has therefore also been objected that the reservation is ultimately ineffective because the right of EU citizens to be granted basic security benefits, regardless of whether they were in Germany for the purpose of looking for work, derives directly from Regulation (EC) 883/2004 which came into force in May 2010. However, this view overlooks the benefit gap for jobseekers from the EU who have either been in Germany for less than three months or who have worked here for less than a year and have been unemployed for more than six months since then. Even the latter, as long as they are seriously and promisingly looking for work, continue to stay legally in accordance with Art. 14 Paragraph 4 b) of Directive 2004/38 / EC (implemented in § 2 Paragraph 2 No. 1a) FreizügG / EU ), but without the right to basic security according to SGB II, which the ECJ treats as a subset of social assistance and thus falls under the exclusion of equal treatment in Article 24 (2) of Directive 2004/38. The ECJ has cited Art. 1 EFA in the legal bases listed, but, due to a lack of own competence, did not decide whether the European Welfare Agreement fills this gap.

    Outside the scope of the regulation, claims from the prohibition of discrimination to the detriment of Union citizens (Art. 18 in conjunction with Art. 21 of the Treaty on the Functioning of the European Union - TFEU ) or from the right to equal treatment of employees (Art. 45 para . 2 TFEU).

    Restriction of social assistance for EU citizens since 2016

    In future, EU citizens in Germany will only receive social assistance or Hartz IV benefits if they have acquired entitlements through contributions to the German social security system. Otherwise, EU citizens are only entitled to receive social benefits after a stay of five years in Germany. The draft law presented by the CDU / CSU and SPD was forwarded to the Bundestag in October 2016 and passed on December 1, 2016. The Federal Council approved the new regulation in December 2016. According to the new regulation, EU citizens who are not entitled to social benefits can only apply for one-off bridging benefits, which are intended to cover their immediate needs for food, accommodation, personal hygiene and medical care for a maximum of one month. A loan to finance the return trip to your home country is also possible.

    In the opinion of the Paritätischer Wohlfahrtsverband, citizens of the EFA states are still entitled to normal subsistence assistance under SGB XII under certain conditions based on a BSG ruling of December 3, 2015; an exception is assistance to overcome particular social difficulties , which was expressly excluded in the EFA.

    literature

    Web links

     Wikinews: Federal Government: EU immigrants no longer receive Hartz IV  - message

    Individual evidence

    1. ↑ Reservations and declarations for treaty 014 - European welfare agreement. Council of Europe, January 22, 2018, accessed January 22, 2018 .
    2. ↑ Federal Social Court: Media information No. 41/10: French people living in Germany are entitled to unemployment benefit II . Press release on the judgment of October 19, 2010 - B 14 AS 23/10 R.
    3. ^ Judgment of the BSG of October 19, 2010 - B 14 AS 23/10 R, explained in: Basics of the right of residence and access to social benefits for foreigners. A guide for migrant organizations. Deutscher Paritätischer Wohlfahrtsverband Gesamtverband eV, December 2011, accessed on January 19, 2018 . P. 23, 27.
    4. ↑ Government wants to cancel Hartz IV for EU immigrants . In: Focus. March 9, 2012. Retrieved March 9, 2012.
    5. ↑ Federal Employment Agency: Code of Conduct SGB II No. 8 of February 23, 2012 - Reservation against the European Welfare Agreement (EFA)  ( page no longer available , search in web archives )  Info: The link was automatically marked as defective. Please check the link according to the instructions and then remove this notice. @1@ 2Template: Dead Link / www.arbeitsagentur.de   . In :arbeitsagentur.de. February 23, 2012. Retrieved March 9, 2012.
    6. ↑ Ministry of Labor defends Hartz IV stop for EU immigrants . In: spiegel.de. March 9, 2012. Retrieved March 9, 2012.
    7. ↑ Matthias Reuß: State of the art: On the admissibility of reservations to the European Welfare Agreement ( Memento of the original from May 10, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. . Scientific service of the German Bundestag. WD-2-3000-035-12. In: harald-thome.de. Retrieved April 27, 2012.  @1@ 2Template: Webachiv / IABot / www.harald-thome.de
    8. ↑ LSG Berlin-Brandenburg. Decision of May 9, 2012 - L 19 AS 794/12 B ER (PDF; 4.1 MB) . Pages 4ff, 5f. Retrieved on May 20, 2012 (final).
    9. ^ SG Berlin. Decision of April 25, 2012 - S 55 AS 9283/12 Section 1.2.1.6.
    10. ↑ Opinion No. 60/2012 of the German Lawyers' Association from June 2012 to the Federal Government ( memento of the original from October 17, 2012 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF; 112 kB) @1@ 2Template: Webachiv / IABot / anwaltverein.de
    11. ↑ Georg Classen: Appeal against rejection of ALG II for Union citizens - German reservation against the EFA ineffective (PDF; 254 kB) , with evidence of the jurisdiction of the regional social courts. Retrieved May 14, 2012; Dorothee Frings: Basic security benefits for Union citizens under the influence of Regulation (EC) No. 883/2004, in: Journal for Aliens Law and Aliens Policy (ZAR) 2012, page 317ff.
    12. ↑ ECJ, judgment of September 15, 2015, Abramovic ./. Job center Neukölln (C-67/2015)
    13. ↑ Frank Schreiber: Are EU foreigners looking for work entitled to unemployment benefit II? In: Social Security 2012, page 392ff.
    14. ↑ Welt.de: Germany cannot take care of all of Europe's needs
    15. ↑ FAZ.net: About social assistance for EU foreigners, Nahles, SPD, reason
    16. ^ A law against "social tourism". Deutsche Welle, October 12, 2016, accessed June 28, 2017 .
    17. ↑ Drastic restrictions on social assistance for EU foreigners. Welt N24, December 2, 2016, accessed June 28, 2017 .
    18. ↑ Social benefits for EU foreigners. German Federal Government, December 16, 2016, accessed on June 28, 2017 .
    19. ↑ Section 2, Paragraph 1 of the Act on the Regulation of Claims of Foreign Persons in Basic Security for Jobseekers according to Book Two of the Social Code and in Social Assistance according to Book Twelve of the Social Code , Federal Law Gazette 2016 I No. 65
    20. ↑ Section 2, Paragraph 2 of the Act on the Regulation of Claims of Foreign Persons in Basic Security for Jobseekers according to Book Two of the Social Code and in Social Assistance according to Book Twelve of the Social Code, Federal Law Gazette 2016 I No. 65
    21. ↑ Judgment of December 3, 2015, BSG, B 4 AS 59/13 R. Quoted from: Arbeitshelfe: Claims to livelihood benefits for EU citizens. The Paritätische Gesamtverband, September 2017, accessed on January 20, 2018 .
    22. ↑ Working aid: Entitlements to subsistence benefits for Union citizens. The Paritätische Gesamtverband, September 2017, accessed on January 20, 2018 .