EU social security regulations expanded to cover non-EU nationals – UK and Danish opt-outs raise possibility of double liability

Posted on 4th January, 2011

Estimated reading time 3 minutes

Since January 1, 2011, the application of the European Social Security Regulation no. 883/2004 also applies to citizens of countries that do not belong to the European Union.  In practice, this means that the regulations have also become applicable to:

- persons who did not  qualify for this regulation before, exclusively due to their nationality;
- such persons who have a legal residence status in an EU member state; and
- such persons who work within the European Union

No right to residence or access to labour market

It is important to note that the Regulation does not create any rights for non-EU nationals concerning residence or access to the labour market.  Legal residence status has not been regulated on a European level, but is governed by the power of the individual Member States.  In other words, every Member State retains the power to refuse access.

Opt out by UK and Denmark

At the time when the new European social security regulations no. 883/2004, 987/2009 and 988/2009 originally came into force on 1 May, 2010, it was clear that there was no political consensus in Europe about the application of these social security regulations concerning non-EU nationals.  As a result an exception was made for non-EU nationals, meaning that Regulation no. 1408/71 remained applicable to them.

The extension to non-EU nationals since 1 January, 2011 does not apply to all member states within the European Union.  This is due to the decision by the United Kingdom and Denmark not to take part in the extension to non-EU nationals, amongst other provisions.   Therefore, for a non-EU national resident and working in one EU member state and working in another no EU social security regulations now apply where one of those countries is the UK or Denmark.  Please note that in such circumstances the assessment of the applicable social security legislation will now be based on national law.  Therefore, a double liability to social security schemes in two member states is now a possibility.

Switzerland, Iceland, Liechtenstein and Norway

In the event of a posting abroad to or from Switzerland, Iceland, Liechtenstein and Norway, the applicable social security legislation must be assessed based on Regulation (EEC) no. 1408/71, for the time being.  Applicability of the new European Social Security Regulation (EC) no. 883/2004 is not possible in these situations until individual agreements have been concluded between the Member States of the European Union and such countries.

For further information or to discuss any of the issues raised, please contact Ton Mertens or Peter Bos on +31 20 578 57 85