The Internal, Systemic and Constitutional Integrity of EU Regulation 883/2004 on the Coordination of Social Security Systems: Lessons from a Scandal

3.1 The Vision of Europe and its Citizens

The reach of the principle of equality concerns our vision of Europe. In the field of social security, the European Court of Justice formulated its vision more than 50 years ago. In Unger, it observed that:

The establishment of as complete a freedom of movement for workers as possible, which thus forms part of the ‘foundations’ of the Community, therefore constitutes the principal objective of Article 51 [TEC, ie, the legal antecedent of 48 TFEU,] and thereby conditions the interpretation of the regulations adopted in implementation of that Article.⁴⁷

As I return to further on in this paper, this vision points towards a broad and systemic notion of ‘equality’, one according to which every single Member State is equal and constitutes an area without borders within the EU.

From the perspective of systemic integrity, it is interesting to note that the current Regulation on the coordination of social security systems was enacted on the same day as the Citizens’ Rights Directive. In its Communication on the Citizens’ Rights Directive, the Commission presents the parallel vision on which the Directive in question rests:

This Directive is being proposed in the context of the new legal and political environment entailed by citizenship of the Union. The basic concept is as follows: Union citizens should, mutatis mutandis, be able to move between Member States on similar terms as nationals of a Member State moving around or changing their place of residence or job in their own country. Any additional administrative or legal obligations should be kept to the bare minimum required by the fact that the person in question is a ‘non-national’.⁴⁸

Free movement of workers operates within the same legal and political landscape as the Citizens’ Rights Directive. At the systemic level, the two instruments constitute a coherent whole. They apply to the same Union and the same citizens. They pursue the same ‘basic concept’. The vision that citizens should ‘be able to move between Member States on similar terms as nationals of a Member State’ is rather similar to the vision of the ‘establishment of as complete a freedom of movement for workers as possible’.

At the practical level, the two instruments have different areas of application. The export rights in Regulation 883/2004 address the competent State. In comparison, the Citizens’ Rights Directive ‘is intended only to govern the conditions of entry and residence of a Union citizen in a Member State other than the Member State of which he is a national’.⁴⁹ The distinction between entry and exit rights derives from primary law. Article 45(b) of the Treaty on the Functioning of the EU (TFEU) establishes that workers have the right to move freely within the territory of the Member States, for the purpose of accepting offers of employment. This condition guides and justifies a right of entry. Exit rights pertaining to social benefits are dealt with in the secondary legislation to which Article 48 TFEU refers. As I return to further on in this paper, the definition of ‘worker’ has always been particularly broad in this respect. Normally, extensive exit rights will not pose a challenge to the budget of the competent State. If a ‘worker’ benefits from a national social security scheme in the first place, the cost has already been incurred at the national level.

Entry rights are more controversial. Over time, the right of entry has been broadened. The status that historically was reserved for workers pursuant to Article 45 TFEU⁵⁰ has gradually been expanded to comprise more and more groups, eg recipients and providers of services.⁵¹ The Citizens’ Rights Directive distilled a range of existing free movement rights into a general right of entry afforded to all people who ‘have sufficient resources for themselves and their family members not to become a burden on the social assistance system’.⁵²

While the Citizens’ Rights Directive provides more extensive entry rights than flows from the text of Article 45 TFEU, the concept of citizenship does not affect the interpretation of Article 48 TFEU, nor does it require a reinterpretation of the latter provision. What it requires, as a matter of systemic integrity, is that the inherent potential in Article 48 TFEU is utilised. If cash benefits are not exportable, workers may in effect be deprived of their entry right, as they will not possess sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host State. From a systemic perspective, the reach of the entry rights of Directive 2004/38 and the exit rights of Regulation 883/2004 must match. In its simplest version, the shared vision with regard to both entry and exit is that European citizens may rightfully consider Europe as home.

3.2 The Vision of Europe as Expressed by Regulation 883/2004

Systemic parallelism and a shared vision of Europe do not mean that the right to export social benefits is derived from the concept of Union citizenship.⁵³ To the contrary, four cornerstones that define its nature confirm the vision of Europe upon which Regulation 883/2004 rests and its autonomous contribution in this respect.

First, it follows from Article 45 TFEU that workers from other States must not be discriminated against on the basis of nationality.⁵⁴ Consequently, as expressed by Article 7, Regulation 883/2004 is constructed upon the State of employment principle (lex loci laboris), and not on the State of residence principle.⁵⁵ When the Regulation was drafted, the European Parliament carefully deleted the references to the ‘territory’ of the Member States that could be found in its predecessor, Regulation 1408/71.⁵⁶ It noted that ‘ECJ case C-337/97 Meusen (1990) I-3289 established that the entitlement to certain benefits cannot be denied on grounds of residence’.⁵⁷ The vision of Europe on which this approach rests is that national borders are normatively irrelevant.

Second, it is important to understand exactly how and why the notion of ‘worker’ in Article 48 TFEU should be understood differently from the notion of ‘worker’ in Article 45 TFEU.⁵⁸ At the outset, the two provisions share a common purpose: to provide for the greatest possible freedom of movement for workers. However, they differ in the way in which that purpose is realised. Article 48 does not have a direct effect.⁵⁹ Its purpose is achieved through the enactment of coordination measures, such as Regulation 883/2004. The notion of ‘worker’ in Article 48 is an EU legal concept that due to its context, objective and purpose comprises subjects who actually are covered by national social security schemes, notwithstanding whether they currently have the status of ‘worker’ pursuant to national law, European labour law, or the well-known standard developed by the ECJ in relation to Article 45 TFEU. With regard to the latter provision, the Court observed in Lawrie-Blum that the essential feature of an employment relationship is that for a certain period of time a person performs services for and under the direction of another person in return for which they receive remuneration.⁶⁰ With regard to Article 48 TFEU, the Court noted in Unger that:

the concept of ‘wage-earner or assimilated worker’ has thus a Community meaning, referring to all those who, as such and under whatever description, are covered by the different national systems of social security.⁶¹

Article 45 promotes free movement by establishing that workers who move must be treated equally to nationals.⁶² Instead, Article 48 promotes free movement by securing that those who actually are protected by national social security schemes are not dissuaded from moving due to a loss of social security advantages.⁶³ The seemingly schizophrenic observation of the Court, that the notion of ‘worker’ pursued by Article 48 TFEU is a concept of Union Law that includes all subjects who are actually covered by the national systems, has a logical explanation. On the one hand, the Member States remain competent with respect to the construction of their national social security schemes: while there is coordination at the European level, there is no harmonisation.⁶⁴ On the other hand, the Member States cannot (partly) shield the schemes that they actually have enacted from coordination at the European level by reference to some narrow definition of ‘worker’. As observed by Pennings:

[…] if a national scheme included particular categories of persons who were not workers in the sense of labour law, these were covered by the regulation.⁶⁵

The aim of the coordination rules to extend the protection that actually exists at the national level to cover the whole of Europe requires a wide understanding of the notion of ‘worker’ that is instrumental to the purpose.⁶⁶ The extension of national rules on social security to include the European dimension rests on the vision that each and every European citizen may rightfully consider Europe as home.

Third, as stipulated by Article 11 Regulation 883/2004, the rules for determining the legislation applicable have exclusive effect. As noted by Pennings, this implies ‘that at any given time the legislation of only one Member State is applicable: in other words no other legislations [sic] can be applicable’.⁶⁷ It should be added that the reach of the schemes of the competent State cannot be cut off at the border, as that would create a situation in which no legislation is applicable at all.⁶⁸ The principle that one national system applies at a time rests on the vision that Europe is one.

Fourth, compared to its predecessor, the revolution of Regulation 883/2004 is the introduction of the all-encompassing definitions of persons covered (Article 2) and matters covered (Article 3). This should not come as a surprise. It marks the fulfilment of the vision formulated by the ECJ in Unger more than 50 years ago. The use of the full potential of the broad notion of ‘worker’ in Article 48 TFEU grants systemic parallelism between the exit right and the entry right.

Considered as a whole, the four fundamentals above create an advanced system of coordination. In the absence of harmonisation, the content of the applicable social security rules will vary according to the legislation of the competent State. To the individual, the legislation of the competent State becomes the legislation of Europe. There will exist different legal regimes, but no borders, as, put simply, the whole of Europe is considered as Sweden, Denmark, Germany and so on, depending on the designation as competent State. The Regulation does not make ‘exportation’ of benefits possible through the introduction of such a right, but through the imposition of a coherent system of coordination that turns Europe into ‘home’.⁶⁹ The vision of Europe pursued by the coordination measures is that whatever the law of the competent State is, it applies wherever in Europe the relevant individual is.⁷⁰

3.3 The Vision Applied

The protection of equal treatment has been the foundational rule of the coordination measures ever since the enactment of Regulation 1958/3.⁷¹ Article 3 of its successor, Regulation 1408/71,⁷² stipulated that:

Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.

Today, the foundational rule is found in Article 4 of Regulation 883/2004:

Unless otherwise provided for by this Regulation, persons to whom this Regulation applies shall enjoy the same benefits and be subject to the same obligations under the legislation of any Member State as the nationals thereof.

A national requirement of continued presence has discriminatory effects against non-nationals. Work is a part of the public sphere. In periods of recovery from illness, one does not act in one’s professional capacity, but resumes a more private existence. Even if a non-national is resident in the competent State (ie habitually resides there), he or she might have family, friends, doctors, therapists, secondary homes and so on in the State of origin. It is more burdensome for non-nationals to adapt to a requirement of presence than for nationals.⁷³

The remaining question is whether the notion of equal treatment offers protection to nationals of the competent State who habitually reside there but would like to stay temporarily in another EU/EEA State; in other words, whether ‘stay’ in another EU/EEA State equates to ‘stay’ in the competent State. The answer depends on how broadly the notion of equality is constructed. Namely, the answer depends on whether such notion merely offers protection in the narrow, subjective sense or constitutes a broader, systemic requirement. A comparison between Article 3 of Regulation 1408/71 and Article 4 of Regulation 883/2004 points in the latter direction. When the latter regulation was drafted, the European Parliament carefully deleted references to ‘territory’.⁷⁴ This adjustment confirms the specific vision of Europe on which the system of coordination rests.⁷⁵

The enactment of a new provision that did not have any counterpart in the old Regulation clarifies the vision of Europe that Regulation 883/2004 pursues. Paragraph (b) of Article 5 Regulation 883/2004 on ‘equal treatment of benefits, income, facts or events’ pursues a systemic notion of equality.⁷⁶ The paragraph stipulates:

where, under the legislation of the competent Member State, legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory.

Clearly, ‘the principles of equal treatment and the assimilation of facts are strengthened’ in Regulation 883/2004 compared to Regulation 1408/71.⁷⁷ In this regard, Jorens and Overmeieren observe that:

Article 5 will enhance equality of treatment in the field of social security coordination, as it will make sure that foreign aspects of a given social security situation will be taken into account. It will provide considerable legal simplification and a clear uniform rule for all Member States.⁷⁸

If a recipient of sickness benefits in cash travels to another Member State, and if the legislation of the competent State pursues a requirement of presence, it attributes ‘legal effects’ to the fact that the beneficiary stayed abroad. It would be a blatant violation of Article 5 if the competent State argues that there is a normative difference between facts that occur in the home State and facts that occur in the host State, and that the crossing of a border makes a difference. The rule expressed by Article 5 is that the EU/EEA States constitute a single area.

If the competent State tries to defend a requirement of presence, it will have to argue that not every ‘fact’ counts as a fact pursuant to Article 5(b): that the provision only refers to ‘facts’ in some more specific and qualified sense, eg that periods of aggregation abroad and at home must be assimilated. If Article 5(b) is constructed to comprise every fact, the counter-argument would be that the notion of equality reaches too far, at the expense of legislative discretion at the national level. Admittedly, there is not much point to a national requirement of presence if presence in some other EU/EEA State must be equated to presence in the competent State. But that might of course be the whole idea behind the rules of Article 5(b).⁷⁹

Nothing in the wording of Article 5 indicates that the provision should be subject to a narrow interpretation. To the contrary, Recital 9 of Regulation 2004/883 suggests a dynamic and purposive approach:

The Court of Justice has on several occasions given an opinion on the possibility of equal treatment of benefits, income and facts; this principle should be adopted explicitly and developed, while observing the substance and spirit of legal rulings.

The reach of the principle of equality, and its limitations must be established on objective grounds. The ECJ has on several occasions clarified that any purposive or teleological interpretation of the Regulation cannot go further than the purpose of coordination justifies.⁸⁰ In this regard, Recital 4 of the Regulation stipulates that:

It is necessary to respect the special characteristics of national social security legislation and to draw up only a system of coordination.

From a practical point of view, it may be argued that if a Norwegian citizen gets sick, is awarded sickness benefits in cash, and goes on holiday in Mallorca for two weeks, no coordination between the Norwegian and the Spanish social security system is required in this respect. Whether he or she can travel to Mallorca and retain his or her cash benefits is solely a matter between that individual and the competent State. Conversely, to nullify the effects of a national requirement of presence would constitute harmonisation, not coordination. However, the argument is not convincing. As explained in section 3.2 above, Regulation 883/2004 does not coordinate national systems in the sense that it merges them.⁸¹ Instead, the Regulation coordinates by giving the legislation of the competent State general application throughout Europe, while ensuring that the European dimension is taken into account. In this regard, Article 5 of Regulation 883/2004 is perfectly in line with the above-mentioned vision of Europe, and makes it operational.

To conclude, Article 5 prescribes a broad, systemic notion of equality. While Article 4 of the Regulation is a straightforward application of the principle of non-discrimination, Article 5 is instrumental and individualistic. A comparison with others is not required. Instead, the situation of the individual who moves is compared with the position of the same individual if he or she does not. Such a systemic approach fuses the right to equality and the right to free movement.⁸² Through its broad, systemic protection of equality, Article 5 provides protection to recipients of sickness benefits in cash that temporarily ‘stay’ in a different EU/EEA State than the competent State.

4.1 Approaches: The Depth of Integration

Article 7 is headed ‘waiving of residence rules’. If a citizen is entitled to benefits pursuant to the legislation of the competent State, the provision of such benefits cannot be subject to alteration only because the citizen habitually resides in another Member State or moves to another Member State on a permanent basis. This section of the paper discusses whether Article 7 also affords rights to beneficiaries who ‘stay’ in another State than the competent State, ie whether Article 7 prohibits national requirements of presence.

Two approaches to Article 7 are possible. One alternative is to regard the provision as an expression of a general principle that addresses residence requirements in particular, but reaches further. The main argument would be that the right to free movement covers any movement across borders, regardless of the length of the stay. Article 7 must be interpreted accordingly.⁸³

Conversely, Article 7 may be interpreted antithetically. It can be argued that, by specifically addressing residence requirements, the provision deliberately excludes the right to temporarily reside abroad (‘stay’) from its scope. The main argument in favour of a narrow interpretation would be that there exist specific socio-economic bonds between beneficiaries who currently receive sickness benefits and their State of residence. A requirement of presence ensures that the recipient remains available to the medical system, the employer and the labour market. An additional concern is that the legitimacy of the welfare system may be negatively affected if those who become sick can also become tourists.

The two different approaches concern not only the reach of Regulation 883/2004, but also the depth of integration. EU primary law provides in any case a right to free movement. However, at the level of primary law, restrictions may be justified, provided that they pursue a legitimate aim, and are necessary and proportionate. The doctrine of mandatory requirements offers some flexibility to the Member States, at least potentially.⁸⁴ In comparison, rights that flow from the Regulation are absolute. Article 7 commences with the words ‘[u]nless otherwise provided for by this Regulation…’. If the Regulation applies, the doctrine of mandatory requirements becomes unavailable. This follows not only from the wording of Articles 4, 5 and 7, but also from the nature of EU Regulations. Regulations are directly applicable and apply ‘as such’.⁸⁵ Any balancing against national legislation and concerns would create legal uncertainty and deprive Regulation 883/2004 of its integrity.⁸⁶

Theoretically, it is possible to interpret the reach of Article 7 ‘as such’ by reference to the principle of proportionality.⁸⁷ One could argue that the provision does not apply to short-term export of cash benefits, not because of the mandatory requirements invoked by a particular Member State in a specific context, but as a matter of EU law. While the approach cannot be excluded, it sits uneasily with the system of the Regulation. Benefits that are closely related to the socio-economic conditions in the country of residence are dealt with in specifically designed exceptions, such as Article 3(5) on social and medical assistance, Article 63 on unemployment benefits and Article 70 on special non-contributory benefits. Such exceptions make a narrow interpretation of the main principle superfluous and somewhat strained.

4.2 Heading and Wording of Article 7

According to Article 1(j) of Regulation 883/2004, ‘“residence” means the place where a person habitually resides’. If Article 7 is interpreted accordingly, the provision has a rather limited reach. It does not provide protection to beneficiaries that merely ‘stay’ abroad, as defined by Article 1(k) of the Regulation. For a more detailed explanation, I refer to section 1 above.

That the distinction between ‘residence’ and ‘stay’ is relevant to the interpretation of Article 7 seems to find some support in Lucy Steward. With respect to the similar provision in Article 10 of Regulation 1408/71, the ECJ remarked:⁸⁸

the first subparagraph of Article 10(1) of Regulation No 1408/71 covers residence clauses, as is clear, in particular, from its heading. However, for the purposes of applying that regulation, the word ‘residence’ means, under Article 1(h) thereof, ‘habitual residence’.

However, one should be careful not to derive too much from the term that is used in the heading of the provision. Headings must be kept short. Their purpose is not to make precise prescriptions, but to provide an indication of what a provision contains. The term ‘residence’ is the only word that both definitions in Article 1 share:

(j) ‘residence’ means the place where a person habitually resides;

 

(k) ‘stay’ means temporary residence;

Consequently, it is the most sensible word to pick if one is to draft a short heading of a provision such as Article 7.

In any case, the distinction between ‘residence’ and ‘stay’ would only be relevant to the interpretation of Article 7 and its heading if the terms were equal alternatives that mutually excluded each other when the provision was drafted. That is not the case. The heading signals that residence-based schemes are prohibited. That information is important and makes sense. Conversely, it would not make much sense to stipulate that social security schemes based on the ‘principle of stay’ are prohibited. Such schemes have never existed.

If we turn to the substantive text of Article 7, it is striking that it does not refer to the notions of ‘residence’ or ‘stay’. Instead, it uses the term ‘reside’. The latter term is ambiguous. One understanding is that payable cash benefits cannot be suspended or reduced on account of the fact that the beneficiary ‘habitually reside[s]’⁸⁹ in another Member State than the competent State. However, the word ‘reside’ might also have a more general and generic meaning. Pursuant to a straightforward literal interpretation, the term ‘reside’ includes ‘temporary residence’ in another Member State (eg the definition of ‘stay’).⁹⁰ It is not at all obvious that the formal definitions in Article 1 should inform the interpretation of Article 7, at the cost of an interpretation that applies ordinary language. After all, the European Parliament applied ordinary language when, in the drafting of the provision, it noted that ‘ECJ case C-337/97 Meusen (1990) I-3289 established that the entitlement to certain benefits cannot be denied on grounds of residence’.⁹¹

4.3 Purpose

The text of Article 7 is ambiguous. We must therefore consider its purpose. The ECJ has on many occasions emphasised that Regulation 883/2004 gives effect to Article 48 TFEU.⁹² The purpose of the provision is to provide for the ‘greatest possible freedom of movement’ for workers.⁹³ This aim guides the application of the Regulation, including the main rule on exportability (Article 7).⁹⁴ On this point, in Brey, the ECJ observed that:

[…] it should be borne in mind that Regulation No 883/2004 seeks to achieve the objective set out in Article 48 TFEU by preventing the possible negative effects that the exercise of the freedom of movement for workers could have on the enjoyment, by workers and their families, of social security benefits […]

 

It is in order to achieve that objective that, through the waiver of residence clauses under Article 7 thereof, Regulation No 883/2004 provides, subject to the exceptions set out therein, for the cash benefits falling within its scope to be exportable in the host Member State […].⁹⁵

Recital 13 of Regulation 883/2004 confirms the purpose by the use of the neutral term ‘moving’:

The coordination rules must guarantee that persons moving within the Community and their dependants and survivors retain the rights and the advantages acquired and in the course of being acquired.

The purpose of the Regulation and the Article clearly suggests that the distinction between ‘residence’ and ‘stay’ is irrelevant. Such a distinction will have ‘negative effects’ for the exercise of the freedom of movement for workers, contrary to the constitutional aim. Assessed from the other angle: what would the purpose of the distinction be? From the perspective of national sovereignty, export rights for individuals who permanently reside abroad are more intrusive than export rights for individuals who temporarily ‘stay’ abroad.

4.4 Context

The term ‘reside’ in Article 7 Regulation 883/2004 must be approached as a legal concept that operates within a broader legal context. An obvious reference is Article 21 TFEU on EU citizenship, which establishes that:

Every citizen of the Union shall have the right to move and reside freely within the territory of the Member States […]

Article 21 TFEU applies the term ‘reside’ in a generic manner that also refers to temporary stays in another Member State. Further, Article 6(1) of the Citizens’ Rights Directive establishes that:

Union citizens shall have the right of residence on the territory of another Member State for a period of up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport.

The provision is constructed upon and confirms the right that flows from Article 21 TFEU. It applies the term ‘residence’ for stays ‘up to three months’, ie short-term stays.

Regulation 883/2004 is not founded upon the concept of Union citizenship, and the reference to Article 21 TFEU is not in itself decisive. However, Regulation 883/2004 itself assumes a generic application of the term ‘residence’. Its Chapter 6 concerns unemployment benefits. The principle of exportability is somewhat controversial in this regard, due to the assumption that it is easier for the unemployed to find new employment in their State of residence. Article 63 of Regulation 883/2004 (‘Special provisions for the waiving of residence rules’) modifies the application of Article 7 in this particular regard. Article 64 provides limited rights pursuant to a set of strict conditions for any wholly unemployed who ‘goes to another Member State in order to seek work there’. According to Article 64(1)(c), the ‘entitlement to benefits shall be retained for a period of three months’. Arguably, if Article 7 grants a right of exportation for up to three months even in its modified version in Chapter 6 of the Regulation, the right of recipients to retain their benefits during temporary stays abroad must be a part of the main rule. Not surprisingly, there is parallelism between Regulation 883/2004 and the Citizens’ Rights Directive in this respect.

4.5 The Effectiveness of the Principle Established by Article 7

For the sake of argument, let us disregard the arguments above and assume that the principle established by Article 7 only addresses residence clauses in the strict and narrow sense, ie that benefits cannot be suspended or modified on grounds of habitual residence. Importantly, such an antithetical interpretation of the principle must be distinguished from its application. The application of a principle – however its content has been defined at the interpretative stage – must grant its full effect. In other words, if Article 7 Regulation 883/2004 only prohibits residence clauses, that principle must be granted full effect at the level of application.

While it is possible to separate the notions of ‘residence’ and ‘presence’ at the interpretative level, things are not that simple at the level of application. The purpose of a national requirement of presence is not to launch a new and autonomous concept, eg the ‘country of sickness scheme’. Instead, such a requirement is based on the empirical assumption that most people get sick in their country of residence. The social security scandal in Norway has proven the assumption correct.

Importantly, if a beneficiary is entitled to receive sickness benefits from the competent State, and actually receives such benefits, a requirement of presence will in most cases also constitute a requirement of residence. If a Norwegian is covered by Norwegian social security law and actually receives sickness benefits in cash from Norway, it is difficult to be present in Norway without also being habitually resident there. In other words, any useful application of a requirement of continued presence is dependent on the prohibited concept of residence.

At the level of interpretation, one may sometimes get the impression that ‘stay’ is something less than ‘residence’ and that residence requirements entail a much more serious hindrance to free movement than requirements of presence. This assumption is overly simplistic. Systemically, residence-based schemes are difficult to combine with the principle of non-discrimination. That is why, as a matter of principle, Regulation 883/2004 eliminates such schemes. Residence-based schemes would not, however, negate free movement. This is not so with requirements of presence. It is impossible to remain present and to move at the same time. In other words, a requirement of presence may occasionally function as a reinforced residence condition.⁹⁶ If that is the case, the requirement is caught by the main rule, simply as a matter of application.

The judgment in Lucy Stewart provides an example of the ECJ’s application of the principle of exportability to requirements of continued presence. The Court observed:

Admittedly, in certain cases, a condition of past presence could be equivalent, in practice, to an habitual residence clause, if, in particular, such condition requires long periods of presence in the Member State concerned and/or if that condition must be met for as long as the benefit in question is paid.⁹⁷ (emphasis added)

Requirements of past presence may occasionally be justified before a benefit is granted, to prove that the necessary connection between the beneficiary and the competent State exists.⁹⁸ To the contrary, if the condition of presence must be met for as long as the benefit is paid,⁹⁹ it must normally be equated to a requirement of residence.

4.6 Reinforced Residence Requirements Are Prohibited

The purpose and the context strongly suggest that the Article introduces a broad-reaching principle. There are counter arguments, however. If Article 7 is interpreted by reference to both Article 1(j) and (k), requirements of presence would be generally prohibited, under all circumstances. There would be a risk that requirements of past presence, which may occasionally be justified, could no longer be sustained. The latter observation may favour a narrow interpretation of the principle. At the level of application, however, the principle must be granted full effectiveness. A requirement of continued presence, the objective of which is not to prove that that a link between the beneficiary and the competent state exists, relies on the notion of residence. Such reinforced residence requirement is caught by the main rule, even pursuant to a narrow interpretation of Article 7.