The EU legal framework on social security for migrants: A comparative assessment of national practices

Abstract

This article examines the legal framework governing third-country nationals’ (TCNs) access to social security and social assistance within the European Union. Moving beyond a descriptive comparison of national models, it establishes the EU acquis—specifically Regulations (EC) No 883/2004 and (EU) No 1231/2010, and Directives 2003/109/EC and Directive (EU) 2024/1233 (repealing Directive 2011/98/EU) as the primary benchmark for evaluating national legislative trends. The analysis distinguishes between the EU’s competence to coordinate social security and Member States’ retained competence to organize social assistance, a distinction rigorously policed by the Court of Justice of the European Union (CJEU) in cases such as Dano, Alimanovic, and the recent CU and ND rulings. The article argues that while EU law imposes a minimum core of uniform treatment regarding social security for legally resident TCNs, it permits significant margins of discretion regarding social assistance. This discretion is the independent variable that explains the divergent national practices examined in the comparative sections. Through a critical examination of recent legislative proposals in Sweden, the SGB II framework in Germany, and the assegno sociale litigation in Italy, this article tests the limits of that discretion against the principles of proportionality, the prohibition of indirect discrimination, and the exportability of benefits under Article 7 of Regulation 883/2004.