The judicial fine-tuning of the EU rules determining the applicable social security legislation

The conflict rules enshrined in Regulation 883/2004 on the coordination of social security were created six decades ago to offer those who exercise free movement rights ‘constant social security protection’. The main idea was to ensure that beneficiaries are always subject to the legislation of a single Member State and to indicate which Member State that was. Because beneficiaries were above all ‘standard’ employees working on a full-time basis for an indefinite period of time, it was initially quite easy to determine the ‘competent’ Member State. The processes of flexibilization, digitalization, enlargement and globalization, however, have posed new and often formidable challenges. In today’s dynamic labour market it is often particularly difficult to identify the applicable legislation, issues arise as regards swift and frequent switches in the applicable legislation, increased worker and company mobility may affect social security rights and problems have arisen because of the possible fraudulent use of the rules determining the applicable legislation. This contribution analyses some of the recent CJEU case law on topics like working in to or more Member States, posting, abuse and fraud, employment and/or residence outside the EU and gaps in in social security protection by EU workers. The overarching question is how, in the view of the CJEU, the classic conflict rules are to be applied so as to ensure cross-border movers continue to enjoy constant social security protection.