Skip to main content
Disciplines
Automotive Business IT + Informatics Construction + Real Estate Electrical Engineering + Electronics Energy + Sustainability Insurance + Risk Finance + Banking Management + Leadership Marketing + Sales Mechanical Engineering + Materials
Events
DE
EN
Books
Journals
Topic Page
Marketing
Start single access now
Access for companies
EXTENDED SEARCH
Log in
Top

2018 | Book

Introduction Read chapter Read first chapter

The EEA Agreement in a Revised EU Framework for Welfare Services

Author: Dr. Karin Fløistad

Publisher: Springer International Publishing

Book Series : Studies in European Economic Law and Regulation

Part of: Springer Professional "Wirtschaft+Technik" , Springer Professional "Wirtschaft"

Login to get access
insite
SEARCH

About this book

This book addresses some of the most debated topics preceding the UK referendum on membership of the EU, namely welfare services and free movement of citizens. The work improves understanding of the implications of the European Economic Area (EEA) Agreement, which is the most integrated form of association agreement with the EU for non-member states. The author considers the impact of EEA law on both European Free Trade Association (EFTA) states and on EU Member States, and looks at case law. A broad range of welfare services are analysed, including public healthcare and educational services, various social services, and public utilities such as transport and public broadcasting. Free movement of students, of patients and public financing of welfare services are among the issues explored.

The focus here is particularly on legal aspects and the demonstrated development of the EEA Agreement into the welfare sphere. This work enables a sophisticated analysis about the nature of the principles of homogeneity and dynamism. The book is essential reading for scholars who seek to understand the EU’s legal framework, the EEA Agreement and its implications. The topics covered are also relevant to UK/EU discussions on future relations, both for intermediate and long-term arrangements.

Table of Contents

Frontmatter
Chapter 1. Introduction
Abstract
This chapter introduces the fundamental question asked in this book which is how the Contracting Parties to the European Economic Area (EEA) Agreement are affected by the revised EU constitutional framework for welfare services. The chapter first points to the aim of filling the lacuna stemming from the fact that even if the academic debate on EU law and welfare services has become rich over the years it has left out the development of EEA law in this field. This introduction also point to the recurring theme in the various chapters calling for the urgent need for better transparency of the EEA integration process in the field of welfare services and for decision making on the part of the Contracting Parties to the Agreement in this sensitive area.
The term welfare services, the content of the revised EU constitutional framework and the fundamentals of EEA law including the principles of dynamism and homogeneity are all explained. The chapter introduces the methodology of empirical research as the tool for the analysis. It further points to however, how the analysis also operates against the literature in particular in two fields of theoretical doctrines; the rule of law and theories of democracy and the sophisticated and advanced concept of market integration to include the social dimension. Finally, the parts and chapters are presented.
Karin Fløistad

The EEA Integration Process and Free Movement of Services: Patients’ and Students’ Mobility in Publicly Financed Systems of Healthcare and Education

Frontmatter
Chapter 2. Free Movement of Services and Article 56 TFEU and Article 36 EEA
Abstract
This chapter sets the scene for the subsequent analysis of patients’ and students’ mobility in publicly financed systems of healthcare and education. Similarities and differences in the relevant legal framework are presented as well as the significance of the move from the economic to the non (or less)-economic sphere. Furthermore, organisational choices are discussed and explained. In particular, the organisational choices made in regard of the relationship between the right to free movement of services and the right to free movement of persons (the subject matter of Part II) is justified based on the fundamental importance of the EEA perspective in the analysis.
Karin Fløistad
Chapter 3. The Provision of Healthcare Services: Free Movement Rights for Patients
Abstract
This chapter analysis the case law and the administrative practices of EU and EEA law in the field of healthcare focusing in particular on free movement rights for patients. The starting point is the case law from the CJEU establishing rights of service recipients as well as gradually stretching the notion of remuneration with the emergence of a new right for Union citizens to seek healthcare in another Member State. The relationship between primary and secondary law is discussed next. Without invalidating previous social security coordination the CJEU interpreted it in such a way as to eliminate its alleged restrictive effects. With the CJEU’s economic approach in healthcare cases rather than applying welfare language, the chapter analysis healthcare case law from the EFTA Court as well as administrative practice from the ESA in the field. The analysis leads to a conclusion of a homogenous development of the law despite the difference between EU and EEA law with the latter lacking provisions such as Article 168 TFEU, Article 35 of the Charter as well as the protection of Union citizens in Articles 20 and 21 TFEU and in principle without a hierarchal relationship separating between primary and secondary law.
Karin Fløistad
Chapter 4. The Provision of Educational Services: Free Movement Rights for Students
Abstract
This chapter analysis the case law and the administrative practices of EU and EEA law in the field of education focusing in particular on free movement rights for students and maintenance grants. The starting point is the relationship between primary and secondary law separating between student’s rights as family members of economically active persons and student’s rights as independent non-economically active movers. The case law from the CJEU is analysed particularly in light of the right to receive maintenance grant in the host state and the right to export maintenance grant from the home state. Practice from the ESA is analysed in relation to the emergence of this new right for Union citizens in the field of publicly financed education and attention is drawn to the Authority’s constant references to CJEU Union citizenship law. The analysis leads to a conclusion of a homogenous development of the law despite the difference between EU and EEA law with the latter lacking provisions such as Articles 165 and 166 TFEU and the protection of Union citizens in Articles 20 and 21 TFEU.
Karin Fløistad
Chapter 5. Some Reflections on the EEA Integration Process Extending Into Healthcare and Educational Services Publicly Financed and Mostly Delivered Through Benefits in Kind
Abstract
This chapter sums up the findings regarding the EEA integration process extending into healthcare and educational services publicly financed and mostly delivered through benefits in kind. The chapter discusses the sensitive character of welfare services and points to the fundamental difference between individual rights and challenges to the financial equilibrium of national budgets. Paralleling the EU legal system the EEA free movement law now involves a move from viewing healthcare and educational services as part of an integrated system of protection towards a view where such services are provided individually anchored in the freedom of choice.
Karin Fløistad

The EEA Integration Process and Union Citizenship: Social Welfare Rights for Non-economically Active Moving EEA Citizens

Frontmatter
Chapter 6. Free Movement of Persons and Articles 45, 48 and 21 TFEU and Articles 28 and 29 EEA
Abstract
This chapter introduces the second overall topic included in the study, namely free movement of persons and the EEA Agreement. This chapter explains broadly the relevance of including this topic and establishes the structure for Part II to inform the reader of a rather complex analysis. The complexity is partly due to the manner in which the relevant secondary legislation became part of the EEA Agreement. Thus, this chapter has a section devoted to the interaction between primary and secondary EU law and a section devoted to the actual incorporation of both the Citizenship Directive and the coordination regime of social security benefits. Furthermore, this chapter introduces the division into four sections of the case study on free movement of persons; beginning the EU integration process in regard of Union citizenship (Chap. 7), and followed by the EEA integration process where Chap. 8 concerns the Citizenship Directive and Chap. 9 concerns the coordination regime and finally Chap. 10 provides overall reflections.
Karin Fløistad
Chapter 7. The EU Integration Process and the Right to Free Movement, Residence and Equal Treatment for Union Citizens
Abstract
This chapter on EU law is a necessary building block for the later EEA analysis. First, this chapter establishes the basics regarding the concept of Union citizenship in the EU legal order and gives a brief historical account of the transformation from economically active persons to the inclusion also of the non-economically active persons into the scope of EU free movement law. This chapter then moves on another key point for the later EEA analysis namely the scope of the harmonisation measures including an analysis of key secondary legislation. The analysis points to the issue of how far measures are harmonised and tries to illuminate the space open to Member States’ own discretion. Having established these concepts the chapter finally demonstrates in particular through the case law of the CJEU how the primary provisions have narrowed the scope of Member States’ freedom in particular in the field of right to free movement for the non-economically active persons. In undertaking this analysis it has been proven useful to distinguish between rights against the host state and rights against the home state—a structure which is also kept in Chaps. 8 and 9 performing the EEA-analysis.
Karin Fløistad
Chapter 8. Case Law from the EFTA Court and Decisional Practice of the EFTA Surveillance Authority on the Right to Free Movement, Residence and Equal Treatment Under the Citizens Directive
Abstract
This chapter is central for the analysis of the rights to free movement of non-economically active persons in the EEA in relation to the Citizenship Directive and therefore also in relation to Union citizenship rights in the EU legal order. The analysis of the EFTA Court case law is separated into two parts, first in regard of rights against the host state and second, in regard of rights against the home state. In each of these two categories the possible consequences of the EFTA Court case law for the obligations on EU Member States as parties to the EEA Agreement is examined. Union citizenship rights for the non-economically active are controversial already limited to the territory of the EU. It is argued that the extension of Member States’ obligations though the extension of the relevant territory (including the territory of the EFTA-States) is in need of more transparency.
For rights against the host state the analysis of Case E-4/11 Clauder demonstrates the Metock-friendly (Case C-127/08) approach by the EFTA-Court towards the rights to family reunification based on EEA law for moving individuals. This section explores the different rational in EU/EEA law for the right to family reunification being a derived rights as compared to human rights law and embarks upon an analysis of the impact on the rights-holders own rights to move and reside freely. For rights against the home state the rather surprising outcome of Cases E-26/13 Gunnarsson and E-28/15 Jabbi are elaborated upon. One might argue that in this case law the EFTA Court has embarked on a journey whereby harmonised legislation is interpreted differently in the EEA as compared to the EU in order to remedy the lack of Union citizenship provisions in the EEA Agreement.
The last section concerns administrative practice in this area from the EFTA Surveillance Authority.
Karin Fløistad
Chapter 9. Case Law from the EFTA Court and Decisional Practice of the EFTA Surveillance Authority on the Right to Free Movement, Residence and Equal Treatment Under the Coordination Regime for Social Security Benefits
Abstract
This chapter is central for the analysis of the rights to free movement of non-economically active persons in the EEA in relation to the Coordination regime for social security schemes where also rights stemming from Union citizenship are relevant in the EU legal order. The analysis of the EFTA Court case law is undertaken both regarding rights against the host state and rights against the home state. The central starting point is Case E-5/06 Liechtenstein helpless allowance a key case on how the EEA Agreement affects boundaries of national solidarity systems. In Case E-4/07 Porkelsson the favouring treatment of moving individuals requiring special protection even of non-discriminatory rules is demonstrated. Cases E-3/12 and E-6/12 concern both the compatibility of national territorial boundaries of welfare solidarity enshrined in national provisions limiting the export of unemployment benefits and child benefits respectively. The last section concerns administrative practice in this area from the EFTA Surveillance Authority taking similar views as the EFTA Court.
Karin Fløistad
Chapter 10. Some Reflections on the EEA Integration Process Extending into the System of Social Welfare Benefits for Non-economically Active Moving EEA Citizens
Abstract
This chapter sums up the findings regarding the EEA integration process extending into the system of social welfare benefits for non-economically active moving EEA citizens. The chapter discusses the sensitive character of expanding national boundaries of solidarity and points to the fundamental difference between the EU and the EEA integration process. Paralleling the EU legal system in the EEA free movement law arguably is in demand of political decision making rather than building on the principle of homogeneity however fundamental this principle is.
Karin Fløistad

The EEA Integration Process and the Financing of Public Services: Applying State Aid Rules to Welfare Services

Frontmatter
Chapter 11. State Aid Law and Articles 14, 106 and 107 TFEU and Articles 59 and 61 EEA
Abstract
This chapter introduces the third part of the project being the task of controlling state aid and the importance of the two-pillar system in the EEA to ensure state aid control. It is clear that the substantive primary law provisions in the chapter on competition and state aid law have remained largely untouched by the process of treaty revisions. However, the position in the EU’s constitutional framework of competition and state aid law and policy have shifted significantly as a result of the revision processes in the amending treaties.
This chapter introduces the subsequent analysis explaining the division into two chapters. It explains how the first part (Chap. 12) concerns legal tools to protect state welfare services from EU/EEA competition and state aid law. However, the second part (Chap. 13) demonstrates how securing guarantees for public services at the EU level in the constitutional texts the Member States have also outlined and legitimized an increased application of EU law to public services. This is then demonstrated through the state aid scrutiny by the Commission applied to largely non-economic services and the paralleling of this practice by the Authority in the EEA. In the EU legal order the increased policymaker role of the Commission has been officially sanctioned through various primary law amendments, the most recent being Article 108(4) TFEU on the right to adopt block exemption regulation. No parallel legal recognition of the Authority exist in the EEA Agreement.
The chapter discusses public services in the EU legal order in light of various models for welfare integration, the changed constitutional framework for public services in the EU legal order including Article 14 TFEU, Article 36 in the Charter of Fundamental Rights and Protocol 26 TFEU as well as the more complex evolution of EU law compared to the analysis in Part I and Part II.
Karin Fløistad
Chapter 12. Legal Tools to Protect State Welfare Services from EU/EEA Competition and State Aid Law
Abstract
This chapter lays the ground for the analysis in Chap. 13 providing an introduction to the state aid rules applicable to states’ financing of public services and the development of key concepts like gratuitous advantage to the recipient including the notion of an undertaking and the notion of economic activity. Central in providing the legal basis for the subsequent analysis is the understanding of case law by the CJEU in particular in regard of these concepts and the Altmark-doctrine which provides guidance on the understanding of the limitations of the state aid competence of the Commission.
The chapter is structured similar to other chapters in first analysing the development in the EU legal order and then to analyse the parallel development in the EEA legal order. First, the case law from the CJEU on the non-applicability of EU rules stemming from the concepts of undertaking and economic activity are addressed. The case law from the EFTA Court in particular Cases E-8/00 LO, E-5/07 PBL and E-14/15 Holship are then analysed. The paralleling of the Altmark doctrine is demonstrated by cases like E-10/11 and 11/11 Hurtigruten, E-9/04 Bankers Dealers, E-14/10 and E-19/13 Konkurrenten.
Karin Fløistad
Chapter 13. The Exercise of State Aid Competence by the Commission and the EFTA Surveillance Authority in the Sectors of Largely Non-economic Welfare Services
Abstract
This chapter examines in detail the revised constitutional framework in the EU legal order in the media field, concentrating on public service broadcasting. The case study includes an analysis of the significance of the lack of the Amsterdam protocol and the revised Article 107(3)(d) TFEU as well as more general differences. The chapter points to other fields like the social housing sector to give similar outcomes.
The chapter is organised in first giving a description of the special character of public service broadcasting, including a description of how a broadcasting market was created. Subsequent steps of the analysis provide an assessment of both the Commission and the Authority’s general guidelines and decisional practice in the field of state aid to public service broadcasting. The findings add to the preceding sections (free movement of services and persons) in demonstrating how the EEA integration process is moving beyond economic concerns to stay in parallel with the EU integration process. This includes the rather extensive powers of the EU/EFTA institutions to review national policy choices in the field of public services through the review of financing measures and to some extent to substitute national policies with their own policies also for largely non-economic services.
Karin Fløistad
Chapter 14. Some Reflections on the EEA Integration Process Extending Deeper Into the Financing of Public Services and Limiting States’ Legislative Freedom Through State Aid Rules
Abstract
This chapter sums up the findings regarding the EEA integration process in the field of financing public services and the state aid provisions. The analysis of the institutional practice supports an understanding of the EEA integration process paralleling concepts of economic/non-economic activity, the concept of an undertaking as well as the Altmark doctrine. Furthermore, the analysis supports the claim that the EEA integration process includes the same scope of state aid review reaching far into the social domain of the EFTA States and involving the balancing of welfare concerns. In paralleling the role of the Commission, the role of the Authority arguably exceeds the preventive control system targeted at addressing distortions of competition that had originally been envisioned in the prohibition of state aid in the EEA agreement.
Karin Fløistad
Chapter 15. Final Observations: Concluding Remarks
Abstract
This chapter sums up the main findings on the EEA integration process in the field of publicly funded welfare services tying the three parts of study together. The chapter first introduces the delimitation of the project limited to EU primary law changes and focuses on how the viability of the EU project came to depend on not separating the market integration from socially oriented objectives. Second, the chapter points to the particular concerns in the EEA dimension when the revised EU legal framework gave new powers to the EU institutions. Furthermore, it is explained how the study has not only revealed consequences for EFTA States but also for EU Member States giving a new dimension to the legal effect of the principles of dynamism and homogeneity and indeed to the EEA integration process itself.
The overall findings and observations are then explained separating between (1) the sequences of events and (2) identified legal techniques before the final section reflecting on implications for future research.
On the sequence of events the importance of beginning the development with the free movement of health care services and the early ‘citizenship’ case law is identified. Furthermore, it is pointed to the importance of initial development on state aid and public services to be directed towards protecting such services. It is only more recently that the revised constitutional framework for public services has been identified to also lead to an increased political and legislative role for EU/EFTA institution.
On the identified legal techniques the observations distinguish between two categories; The least controversial is when the EU/EFTA institutions apply indirectly the revised constitutional framework of the EU in an interpretation process of already-existing provisions in the EEA. More controversial is a more recent technique necessary in situations where the CJEU develop rights relying exclusively or mainly on primary law provision snot paralleled in the EEA. It is argued that in all the three areas of welfare services studied this last situation has occurred. This brings the project to the conclusion that the institutions have consistently opted for a legal outcome of achieving the same end result in the EEA as in the EU legal order even without a parallel legal framework.
The project is limited to legal aspects and does not take a normative stance on the way the European integration process has developed. The author is more concerned with the demonstrated consequences of these institutional choices—in particular in a sensitive and highly policy oriented domain as the welfare sector. The urgent need for better transparency is a recurring theme leading to the inevitable request for further action on the part of the Contracting Parties to the EEA Agreement.
Karin Fløistad
Backmatter
Metadata
Title
The EEA Agreement in a Revised EU Framework for Welfare Services
Author
Dr. Karin Fløistad
Copyright Year
2018
Electronic ISBN
978-3-319-95043-3
Print ISBN
978-3-319-95042-6
DOI
https://doi.org/10.1007/978-3-319-95043-3

Premium Partner

    Image Credits