a) The Charter of Fundamental Rights of the European Union
Article 34 of the Charter affirms respect for the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. It recognises entitlement to social security and social assistance for everyone residing and moving legally within the European Union in accordance with Union law and national laws and practices. It also sets out the right to social assistance and social housing to ensure a decent existence for all those who lack sufficient resources and combat social exclusion and poverty.
Article 35 of the Charter guarantees the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices.
b) The legislative powers and their limits
Article 153(2) of the Treaty on the Functioning of the European Union (TFEU) enables the Union legislature to adopt measures, including directives setting minimum requirements, in the field of social security and social protection of workers.
Article 153(4) provides that provisions adopted pursuant to Article 153 TFEU shall not affect the right of Member States to define the fundamental principles of their social security system and must not significantly affect the financial equilibrium thereof. Directives adopted on the basis of Article 153 TFEU shall avoid imposing administrative, financial and legal constraints in a way which would hold back the creation and development of small and medium-sized undertakings.
Pursuant to Article 156 TFEU, the Commission is tasked to encourage cooperation between the Member States and facilitate coordination of their action in all social policy fields under Title X of the TFEU.
Article 48 TFEU requires the Union legislature to adopt such measures in the field of social security as are necessary to provide freedom of movement for workers and the self-employed between the Member States.
c) Existing measures
Council Recommendation 92/442/EEC on the convergence of social protection objectives and policies(94) covers social insurance for workers in relation to sickness, maternity, unemployment, incapacity for work, the elderly and family.
Council Recommendation 92/441/EEC on common criteria concerning sufficient resources and social assistance in social protection systems(95) sets out principles and guidelines to implement this right.
Directive 2010/41/EU of the European Parliament and of the Council on the application of the principle of equal treatment between men and women engaged in self-employed activity(96) grants access to maternity leave and benefits for at least 14 weeks. It does not cover access to any other social insurance risks.
Regulation (EC) No 883/2004 of the European Parliament and of the Council(97) coordinates the social security rules of the Member States as regards persons in cross-border situations.
Regulation (EU) No 1231/2010 of the European Parliament and of the Council(98) coordinates social security systems in the case of third country nationals and their family members legally residing in the territory of the Union who have moved between Member States.
Council Directive 2003/109/EC(99) concerning the status of third-country nationals who are long-term residents, together with a number of other Union directives concerning legal migration of third country nationals in the Union(100), confer them equal treatment rights with host country's nationals in relation to social protection and social security.
(94) Council Recommendation 92/442/EEC of 27 July 1992 on the convergence of social protection objectives and policies OJ L 245, 26.8.1992, p. 49.
(95) Council Recommendation 92/441/EEC of 24 June 1992, OJ L 245, 26.8.1992, p. 46.
(96) Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the Principle of equal treatment between men and women engaged in an activity in a self-employed capacity, OJ L 180, 15.7.2010, p.1.
(97) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems OJ L 166, 30.4.2004, p.1.
(98) Regulation (EU) No 1231/2010 of the European Parliament and of the Council of 24 November 2010 extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by these Regulations solely on the ground of their nationality, OJ L 344, 29.12.2010, p. 1.
(99) Council Directive 2003/109/EC of 25 November 2003 concerning the status of third-country nationals who are long-term residents, OJ L 16, 23.1.2004, p. 44. See also, for example, Directive 2011/98/EU of the European Parliament and of the Council of 13 December 2011 on a single application procedure for a single permit for third-country nationals to reside and work in the territory of a Member State and on a common set of rights for third-country workers legally residing in a Member State, OJ L 343, 23.12.2011, p.1.
(100) Directives on: Family reunification, Blue Card, Single Permit, Researchers, Students, Qualification as a beneficiary of international protection, seasonal workers and intra-corporate transferees.