Social Security Coordination in the EEA: The Limits of Free Movement of Services as a Tool for Homogeneity

Abstract

In E-8/20 Criminal proceedings against N, the EFTA Court established that persons temporarily staying in another EEA State are entitled to sickness benefits in cash based on Article 36 EEA on the free movement of services. This approach to Article 36 EEA has been highly endorsed in the scholarly literature. In fact, the EFTA Court was even criticised for not adopting a similar approach to Article 36 EEA in its later advisory opinions on unemployment benefits in E-13/20 O v Arbeids- og velferdsdirektoratet and E-15/20 Criminal proceedings against P. However, a similar wide-reaching approach to the free movement of services in the field of social security coordination cannot be identified in the EU legal order. This article develops and presents two core arguments. First, it contests whether a broad application of the free movement of services is substantively possible within social security outside the context of benefits in kind. Secondly, it suggests that there is no need to rely on Article 36 EEA to achieve homogeneity in social security coordination. Instead, the article provides for alternative interpretations in line with the existing case law of the Court of Justice of the EU. The aim of the article is to highlight that it is crucial to carefully consider how homogeneity is achieved, and not only that the resulting legal effects and rights are homogenous. Even if different approaches may lead to identical legal effects for individuals in the short term, homogeneity may be at risk if differences in approaches between the two courts are sustained over time in an otherwise identically mirrored field.