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Document 52009AG0001
Common Position (EC) No 1/2009 of 17 December 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its annexes (Text with relevance for the EEA and for Switzerland)
Common Position (EC) No 1/2009 of 17 December 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its annexes (Text with relevance for the EEA and for Switzerland)
Common Position (EC) No 1/2009 of 17 December 2008 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to the adoption of a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its annexes (Text with relevance for the EEA and for Switzerland)
SL C 33E, 10.2.2009, p. 1–29
(BG, ES, CS, DA, DE, ET, EL, EN, FR, GA, IT, LV, LT, HU, MT, NL, PL, PT, RO, SK, SL, FI, SV)
10.2.2009 |
EN |
Official Journal of the European Union |
CE 33/1 |
COMMON POSITION (EC) No 1/2009
adopted by the Council on 17 December 2008
with a view to the adoption of Regulation (EC) No …/2009 of the European Parliament and of the Council of … amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of its annexes
(Text with relevance for the EEA and for Switzerland)
(2009/C 33 E/01)
THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,
Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,
Having regard to the proposal from the Commission,
Having regard to the Opinion of the European Economic and Social Committee (1),
Acting in accordance with the procedure laid down in Article 251 of the Treaty (2),
Whereas:
(1) |
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (3) provides for the content of Annexes II, X and XI to that Regulation to be determined before its date of application. |
(2) |
Annexes I, III, IV, VI, VII, VIII and IX to Regulation (EC) No 883/2004 should be adapted in order to take into account both the requirements of the Member States which have acceded to the European Union since that Regulation was adopted and recent developments in other Member States. |
(3) |
Articles 56(1) and 83 of Regulation (EC) No 883/2004 provide for special provisions for the implementation of the legislation of certain Member States to be set out in Annex XI to that Regulation. Annex XI is intended to take account of the particularities of the various social security systems of Member States in order to facilitate the application of the rules on coordination. A number of Member States have asked for entries concerning the application of their social security legislation to be included in this Annex and have provided the Commission with legal and practical explanations of their legislation and systems. |
(4) |
In accordance with the need for rationalisation and simplification, a common approach is needed in order to ensure that entries in respect of different Member States which are of a similar nature or pursue the same objective are in principle dealt with in a similar manner. |
(5) |
As the aim of Regulation (EC) No 883/2004 is to coordinate social security legislation for which Member States are exclusively responsible, entries which are not compatible with its purpose or objectives, and entries seeking solely to clarify the interpretation of national legislation, should not be included in that Regulation. |
(6) |
Some requests raised issues that were common to several Member States: it is therefore appropriate to deal with those issues at a more general level, either by clarification in the body of Regulation (EC) No 883/2004 or in another of its Annexes, which should therefore be amended accordingly, or through a provision in the implementing Regulation referred to in Article 89 of Regulation (EC) No 883/2004, rather than by inserting similar entries in Annex XI for several Member States. |
(7) |
Article 28 of Regulation (EC) No 883/2004 should be amended in order to clarify and extend its scope and to ensure that the members of the family of former frontier workers may also benefit from the possibility of continuing medical treatment in the former country of employment of the insured person after his/her retirement, unless the Member State where the frontier worker last pursued his/her last activity is listed in Annex III. |
(8) |
It is also appropriate to deal with certain specific issues in other Annexes to Regulation (EC) No 883/2004, according to their purpose and content, rather than in Annex XI thereto, in order to ensure consistency in the Annexes to that Regulation. |
(9) |
Some Member States' entries in Annex VI of Regulation (EEC) No 1408/71 are now covered by certain general provisions in Regulation (EC) No 883/2004. Consequently, a number of entries in Annex VI of Regulation (EEC) No 1408/71 have become superfluous. |
(10) |
In order to facilitate the use of Regulation (EC) No 883/2004 by citizens when asking for information or making claims to the institutions of the Member States, references to the legislation of the Member States concerned should also be made in the original language wherever necessary in order to avoid any possible misunderstanding. |
(11) |
Regulation (EC) No 883/2004 should therefore be amended accordingly. |
(12) |
Regulation (EC) No 883/2004 provides that it is to apply from the date of entry into force of the implementing Regulation. This Regulation should therefore apply from the same date, |
HAVE ADOPTED THIS REGULATON:
Article 1
Regulation (EC) No 883/2004 is hereby amended as follows:
1) |
the following recital shall be inserted after recital (17):
|
2) |
the following recital shall be inserted after recital (18):
|
3) |
in Article 1, the following point shall be inserted:
|
4) |
Article 3(5) shall be replaced by the following: ‘5. This Regulation shall not apply to:
|
5) |
Article 14(4) shall be replaced by the following: ‘4. Where the legislation of a Member State makes admission to voluntary insurance or optional continued insurance conditional upon residence in that Member State or upon previous activity as an employed or self-employed person, Article 5(b) shall apply only to persons who have been subject, at some earlier stage, to the legislation of that Member State on the basis of an activity as an employed or self-employed person.’; |
6) |
in Article 15, the term ‘auxiliary staff’ shall be replaced by ‘contract staff’; |
7) |
Article 18(2) shall be replaced by the following: ‘2. The members of the family of a frontier worker shall be entitled to benefits in kind during their stay in the competent Member State. Where the competent Member State is listed in Annex III however, the members of the family of a frontier worker who reside in the same Member State as the frontier worker shall be entitled to benefits in kind in the competent Member State only under the conditions laid down in Article 19(1). The list contained in Annex III shall be reviewed no later than … (4) on the basis of a report from the Administrative Commission. In the light of this report, the European Commission may, if necessary, submit a proposal to revise the list.’; |
8) |
Article 28(1) shall be replaced by the following: ‘1. A frontier worker who has retired because of old-age or invalidity is entitled in the event of sickness to continue to receive benefits in kind in the Member State where he/she last pursued his/her activity as an employed or self-employed person, insofar as this is a continuation of treatment which began in that Member State. “Continuation of treatment” means the continued investigation, diagnosis and treatment of an illness for its entire duration. The first subparagraph shall apply mutatis mutandis to the members of the family of the former frontier worker unless the Member State where the frontier worker last pursued his/her activity is listed in Annex III. The list contained in Annex III shall be reviewed no later than … (4) on the basis of a report from the Administrative Commission. In the light of this report, the European Commission may, if necessary, submit a proposal to revise the list.’; |
9) |
Article 36(1) shall be replaced by the following: ‘1. Without prejudice to any more favourable provisions in paragraphs 2 and 2a of this Article, Articles 17, 18(1), 19(1) and 20(1) shall also apply to benefits relating to accidents at work or occupational diseases.’; |
10) |
in Article 36, the following paragraph shall be inserted: ‘2a. The competent institution may not refuse to grant the authorisation provided for in Article 20(1) to an employed or self-employed person who has sustained an accident at work or has contracted an occupational disease and who is entitled to benefits chargeable to that institution, where the treatment appropriate to his/her condition cannot be given in the Member State in which the person resides within a time limit which is medically justifiable, taking into account his/her current state of health and the probable course of his illness.’; |
11) |
Article 51(3) shall be replaced by the following: ‘3. Where the legislation or specific scheme of a Member State makes the acquisition, retention or recovery of the right to benefits conditional upon the person concerned being insured at the time of the materialisation of the risk, this condition shall be regarded as having been satisfied if that person has been previously insured under the legislation or specific scheme of that Member State and is, at the time of the materialisation of the risk, insured under the legislation of another Member State for the same risk or, failing that, if a benefit is due under the legislation of another Member State for the same risk. The latter condition shall, however, be deemed to be fulfilled in the cases referred to in Article 57.’; |
12) |
Article 52(4) shall be replaced by the following: ‘4. Where the calculation pursuant to paragraph 1(a) in one Member State invariably results in the independent benefit being equal to or higher than the pro rata benefit, calculated in accordance with paragraph 1(b), the competent institution shall waive the pro rata calculation, provided that:
|
13) |
the following paragraph shall be added to Article 52: ‘5. Notwithstanding the provisions of paragraphs 1, 2 and 3, the pro rata calculation shall not apply to schemes providing benefits in respect of which periods of time are of no relevance to the calculation, subject to such schemes being listed in part 2 of Annex VIII. In such cases, the person concerned shall be entitled to the benefit calculated in accordance with the legislation of the Member State concerned.’; |
14) |
in Article 56(1)(c), the words ‘where necessary’ shall be inserted before ‘in accordance with the procedures laid down in Annex XI’; |
15) |
in Article 56(1), the following point shall be added:
|
16) |
in Article 57, the following paragraph shall be added: ‘4. This Article shall not apply to schemes listed in part 2 of Annex VIII.’; |
17) |
in Article 62(3), the term ‘frontier workers’ shall be replaced by ‘unemployed persons’; |
18) |
the following Article shall be inserted: ‘Article 68a Provision of benefits In the event that family benefits are not used by the person to whom they should be provided for the maintenance of the members of the family, the competent institution shall discharge its legal obligations by providing those benefits to the natural or legal person in fact maintaining the members of the family, at the request and through the agency of the institution in their Member State of residence or of the designated institution or body appointed for that purpose by the competent authority of their Member State of residence.’; |
19) |
Article 87 shall be amended as follows:
|
20) |
the Annexes shall be amended in accordance with the Annex to this Regulation. |
Article 2
This Regulation shall enter into force on the day following that of its publication in the Official Journal of the European Union.
It shall apply from the date of entry into force of the implementing Regulation referred to in Article 89 of Regulation (EC) No 883/2004.
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at, …
For the European Parliament
The President
…
For the Council
The President
…
(1) OJ C 161, 13.7.2007, p. 61.
(2) Opinion of the European Parliament of 9 July 2008 (not yet published in the Official Journal), Council Common Position of 17 December 2008 and Position of the European Parliament of … (not yet published in the Official Journal).
(3) OJ L 166, 30.4.2004, p. 1. Corrected version in OJ L 200, 7.6.2004, p. 1.
(4) 5 years from the date of application of this Regulation.
ANNEX
Amendments to the Annexes to Regulation (EC) No 883/2004
A. |
Annex I is amended as follows:
|
B. |
Annex II is replaced by the following: ‘ANNEX II PROVISIONS OF CONVENTIONS WHICH REMAIN IN FORCE AND WHICH, WHERE APPLICABLE, ARE RESTRICTED TO THE PERSONS COVERED THEREBY (Article 8(1)) General comments It is to be noted that the provisions of bilateral conventions which do not fall within the scope of this Regulation and which remain in force between Member States are not listed in this Annex. This includes obligations between Member States arising from conventions providing, for example, for provisions regarding aggregation of insurance periods fulfilled in a third country. Provisions of social security conventions remaining applicable: BELGIUM-GERMANY Articles 3 and 4 of the Final Protocol of 7 December 1957 to the General Convention of that date, as set out in the Complementary Protocol of 10 November 1960 (reckoning of insurance periods completed in some border regions before, during and after the Second World War). BELGIUM-LUXEMBOURG Convention of 24 March 1994 on social security for frontier workers (relating to the complementary flat rate reimbursement) BULGARIA-GERMANY Article 28(1)(b) of the Convention on social security of 17 December 1997 (maintenance of conventions concluded between Bulgaria and the former German Democratic Republic for persons who already received a pension before 1996). BULGARIA-AUSTRIA Article 38(3) of the Convention on social security of 14 April 2005 (reckoning of periods of insurance completed before 27 November 1961); the application of that provision remains restricted to the persons covered by that Convention. BULGARIA-SLOVENIA Article 32(2) of the Convention on Social Security of 18 December 1957 (reckoning of periods of insurance completed until 31 December 1957). CZECH REPUBLIC-GERMANY Article 39(1)(b) and (c) of the Convention on Social Security of 27 July 2001 (maintenance of the convention concluded between the former Czechoslovak Republic and the former German Democratic Republic for persons who already received a pension before 1996; reckoning of periods of insurance completed in one of the contracting States for persons who already received a pension for these periods on 1 September 2002 from the other contracting State, while residing in its territory). CZECH REPUBLIC-CYPRUS Article 32(4) of the Convention on Social Security of 19 January 1999 (determining competence for the calculation of periods of employment completed under the relevant Convention of 1976); the application of that provision remains restricted to the persons covered by it. CZECH REPUBLIC-LUXEMBOURG Article 52(8) of the Convention on Social Security of 17 November 2000 (reckoning of pension insurance periods for political refugees). CZECH REPUBLIC-AUSTRIA Article 32(3) of the Convention on social security of 20 July 1999 (reckoning of periods of insurance completed before 27 November 1961); the application of that provision remains restricted to the persons covered by it. CZECH REPUBLIC-SLOVAKIA Articles 12, 20 and 33 of the Convention on Social Security of 29 October 1992 (Article 12 determines competence for a grant of survivor's benefits; Article 20 determines competence for calculation of insurance periods completed until the day of dissolution of the Czech and Slovak Federal Republic; Article 33 determines competence for payment of pensions awarded before the day of the dissolution of the Czech and Slovak Federal Republic). DENMARK-FINLAND Article 7 of the Nordic Convention on social security of 18 August 2003 (concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country increasing the cost of return travel to the country of residence). DENMARK-SWEDEN Article 7 of the Nordic Convention on social security of 18 August 2003 (concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country increasing the cost of return travel to the country of residence). GERMANY-SPAIN Article 45(2) of the Social Security Convention of 4 December 1973 (representation by diplomatic and consular authorities). GERMANY-FRANCE
GERMANY-LUXEMBOURG Articles 4, 5, 6 and 7 of the Convention of 11 July 1959 (reckoning of insurance periods completed between September 1940 and June 1946). GERMANY-HUNGARY Article 40(1)(b) of the Convention on social security of 2 May 1998 (maintenance of the convention concluded between the former German Democratic Republic and Hungary for persons who already received a pension before 1996). GERMANY-NETHERLANDS Articles 2 and 3 of Complementary Agreement No 4 of 21 December 1956 to the Convention of 29 March 1951 (settlement of rights acquired under the German social insurance scheme by Dutch workers between 13 May 1940 and 1 September 1945). GERMANY-AUSTRIA
GERMANY-POLAND
GERMANY-ROMANIA Article 28(1)(b) of the Convention on social security of 8 April 2005 (maintenance of the convention concluded between the former German Democratic Republic and Romania for persons who already received a pension before 1996). GERMANY-SLOVENIA Article 42 of the Convention on social security of 24 September 1997 (settlement of rights acquired before 1 January 1956 under the social security scheme of the other contracting state); the application of that provision remains restricted to the persons covered by it. GERMANY-SLOVAKIA Article 29(1), second and third subparagraphs of the Agreement of 12 September 2002 (maintenance of the convention concluded between the former Czechoslovak Republic and the former German Democratic Republic for persons who already received a pension before 1996; reckoning of periods of insurance completed in one of the contracting States for persons who already received a pension for these periods on 1 December 2003 from the other contracting State, while residing in its territory). GERMANY-UNITED KINGDOM
IRELAND-UNITED KINGDOM Article 19(2) of the Agreement of 14 December 2004 on social security (concerning the transfer and reckoning of certain disability credits). SPAIN-PORTUGAL Article 22 of the General Convention of 11 June 1969 (export of unemployment benefits). This entry will remain valid for two years from the date of application of this Regulation. ITALY-SLOVENIA
LUXEMBOURG-PORTUGAL Agreement of 10 March 1997 (on the recognition of decisions by institutions in one contracting party concerning the state of invalidity of applicants for pensions from institutions in the other contracting party). LUXEMBOURG-SLOVAKIA Article 50(5) of the Convention on Social Security of 23 May 2002 (reckoning of pension insurance periods for political refugees). HUNGARY-AUSTRIA Article 36(3) of the Convention on social security of 31 March 1999 (reckoning of periods of insurance completed before 27 November 1961); the application of that provision remains restricted to the persons covered by it. HUNGARY-SLOVENIA Article 31 of the Convention on social security of 7 October 1957 (reckoning of periods of insurance completed before 29 May 1956); the application of that provision remains restricted to the persons covered by it. HUNGARY-SLOVAKIA Article 34(1) of the Convention on social security of 30 January 1959 (Article 34(1) of that Convention provides that the insurance periods awarded before the day of signing that Convention are the insurance periods of the contracting State on which territory the entitled person had a residence); the application of that provision remains restricted to the persons covered by it. AUSTRIA-POLAND Article 33(3) of the Convention on social security of 7 September 1998 (reckoning of periods of insurance completed before 27 November 1961); the application of that provision remains restricted to the persons covered by it. AUSTRIA-ROMANIA Article 37(3) of the Agreement on social security of 28 October 2005 (reckoning of periods of insurance completed before 27 November 1961); the application of that provision remains restricted to the persons covered by it. AUSTRIA-SLOVENIA Article 37 of the Convention on social security of 10 March 1997 (reckoning of periods of insurance completed before 1 January 1956); the application of that provision remains restricted to the persons covered by it. AUSTRIA-SLOVAKIA Article 34(3) of the Convention of 21 December 2001 on Social Security (reckoning of periods of insurance completed before 27 November 1961); the application of that provision remains restricted to the persons covered by it. FINLAND-SWEDEN Article 7 of the Nordic Convention on social security of 18 August 2003 (concerning coverage of extra travel expenses in case of sickness during stay in another Nordic country increasing the cost of return travel to the country of residence).’ |
C. |
Annex III is replaced by the following: ‘ANNEX III RESTRICTION OF RIGHTS TO BENEFITS IN KIND FOR MEMBERS OF THE FAMILY OF A FRONTIER WORKER (referred to in Article 18(2)) DENMARK ESTONIA (this entry will be valid during the period referred to in Article 87(10a)) IRELAND SPAIN (this entry will be valid during the period referred to in Article 87(10a)) ITALY (this entry will be valid during the period referred to in Article 87(10a)) LITHUANIA (this entry will be valid during the period referred to in Article 87(10a)) HUNGARY (this entry will be valid during the period referred to in Article 87(10a)) NETHERLANDS (this entry will be valid during the period referred to in Article 87(10a)) FINLAND SWEDEN UNITED KINGDOM’. |
D. |
Annex IV is amended as follows:
|
E. |
Annex VI is amended as follows:
|
F. |
Annex VII is amended as follows:
|
G. |
Annex VIII is replaced by the following: ‘ANNEX VIII CASES IN WHICH THE PRO RATA CALCULATION SHALL BE WAIVED OR SHALL NOT APPLY (Article 52(4) and 52(5)) Part 1: Cases in which the pro rata calculation shall be waived pursuant to Article 52(4) DENMARK All applications for pensions referred to in the law on social pensions, except for pensions mentioned in Annex IX. IRELAND All applications for state pension (transition), state pension (contributory), widow's (contributory) pension and widower's (contributory) pension. CYPRUS All applications for old age, invalidity, widow's and widower's pensions. LATVIA
LITHUANIA All applications for State social insurance survivor's pensions calculated on the basis of the basic amount of survivor's pension (Law on State Social Insurance Pensions). NETHERLANDS All applications for old-age pensions under the law on general old-age insurance (AOW). AUSTRIA
POLAND All applications for disability pensions, old-age pensions under the defined benefits scheme and survivors' pensions. PORTUGAL All applications for invalidity, old-age and survivors' pension claims, except for the cases where the totalised periods of insurance completed under the legislation of more than one Member State are equal to or longer than 21 calendar years, the national periods of insurance are equal or inferior to 20 years, and the calculation is made under Article 11 of Decree-Law No 35/2002, 19 February. SLOVAKIA
SWEDEN All applications for guarantee pension in the form of old-age pension (Act 1998:702) and old-age pension in the form of supplementary pension (Act 1998:674). UNITED KINGDOM All applications for retirement pension, widows' and bereavement benefits, with the exception of those for which:
All applications for additional pension pursuant to the Social Security Contributions and Benefits Act 1992, section 44, and the Social Security Contributions and Benefits (Northern Ireland) Act 1992, section 44. Part 2: Cases in which Article 52(5) applies BULGARIA Old age pensions from the Supplementary Compulsory Pension Insurance, under Part II, Title II, of the Social Insurance Code. ESTONIA Mandatory funded old-age pension scheme. FRANCE Basic or supplementary schemes in which old-age benefits are calculated on the basis of retirement points. LATVIA Old-age pensions (Law on State pensions of 1 January 1996; Law on State funded pensions of 1 July 2001). HUNGARY Pension benefits based on membership of private pension funds. AUSTRIA
POLAND Old-age pensions under the defined contribution scheme. SLOVENIA Pension from compulsory supplementary pension insurance. SLOVAKIA Mandatory old-age pension saving. SWEDEN Income-based pension and premium pension (Act 1998:674). UNITED KINGDOM Graduated retirement benefits paid pursuant to the National Insurance Act 1965, sections 36 and 37, and the National Insurance Act (Northern Ireland) 1966, sections 35 and 36.’; |
H. |
Annex IX is amended as follows:
|
I. |
Annex X is replaced by the following: ‘ANNEX X SPECIAL NON-CONTRIBUTORY CASH BENEFITS (Article 70(2)(c)) BELGIUM
BULGARIA Social Pension for old age (Article 89 of the Social Insurance Code). CZECH REPUBLIC Social allowance (State Social Support Act No 117/1995 Sb.). DENMARK Accommodation expenses for pensioners (Law on individual accommodation assistance, consolidated by Law No 204 of 29 March 1995). GERMANY
ESTONIA
IRELAND
GREECE Special benefits for the elderly (Law 1296/82). SPAIN
FRANCE
ITALY
CYPRUS
LATVIA
LITHUANIA
LUXEMBOURG Income for the seriously disabled (Article 1(2), Law of 12 September 2003), with the exception of persons recognised as being disabled workers and employed on the mainstream labour market or in a sheltered environment. HUNGARY
MALTA
NETHERLANDS
AUSTRIA Compensatory supplement (Federal Act of 9 September 1955 on General Social Insurance — ASVG, Federal Act of 11 October 1978 on Social insurance for persons engaged in trade and commerce — GSVG and Federal Act of 11 October 1978 on Social insurance for farmers — BSVG). POLAND Social pension (Act of 27 June 2003 on social pensions). PORTUGAL
SLOVENIA
SLOVAKIA
FINLAND
SWEDEN
UNITED KINGDOM
|
J. |
Annex XI is replaced by the following: ‘ANNEX XI SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF THE MEMBER STATES (Articles 51(3), 56(1) and 83) BELGIUM None. BULGARIA Article 33(1) of the Bulgarian Health Insurance Act shall apply to all persons for whom Bulgaria is the competent Member State under Chapter 1 of Title III of this Regulation.; CZECH REPUBLIC For the purposes of defining members of the family according to Article 1(i), “spouse” also includes registered partners as defined in the Czech act no. 115/2006 Coll., on registered partnership.; DENMARK
GERMANY
ESTONIA For the purpose of calculating parental benefits, periods of employment in Member States other than Estonia shall be considered to be based on the same average amount of Social Tax as paid during the periods of employment in Estonia with which they are aggregated. If during the reference year the person has been employed only in other Member States, the calculation of the benefit shall be considered to be based on the average Social Tax paid in Estonia between the reference year and the maternity leave. IRELAND
GREECE
SPAIN
FRANCE
ITALY None. CYPRUS For the purpose of applying the provisions of Articles 6, 51 and 61 of this Regulation, for any period commencing on or after 6 October 1980, a week of insurance under the legislation of the Republic of Cyprus is determined by dividing the total insurable earnings for the relevant period by the weekly amount of the basic insurable earnings applicable in the relevant contribution year, provided that the number of weeks so determined shall not exceed the number of calendar weeks in the relevant period. LATVIA None. LITHUANIA None. LUXEMBOURG None. HUNGARY None. MALTA Special provisions for civil servants
NETHERLANDS
AUSTRIA
POLAND None. PORTUGAL None. ROMANIA None. SLOVENIA None. SLOVAKIA None. FINLAND
SWEDEN
UNITED KINGDOM
|
STATEMENT OF THE COUNCIL'S REASONS
I. INTRODUCTION
On 29 April 2004, the European Parliament and the Council adopted Regulation (EC) No 883/2004 (1) on the coordination of social security systems (hereinafter referred to as the ‘basic Regulation’) which is intended to replace Regulation (EEC) No 1408/71 (2).
The basic Regulation includes Annexes that contain provisions in respect of individual Member States. The contents of certain of these annexes had not yet been determined when the Regulation was adopted. The basic Regulation therefore provides that the contents of its Annexes II (provisions of conventions which remain in force), X (special non-contributory cash benefits) and XI (special provisions for the application of the legislation of the Member States), which were left empty, should be determined before the date of application of the Regulation.
Some of the Annexes had also to be adapted to take into account the requirements of the Member States that have acceded to the European Union since the adoption of the Regulation, as well as recent developments in other Member States.
This is the purpose of the two proposals for Regulations which the Commission presented on 24 January 2006 and 3 July 2007, respectively:
— |
Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of Annex XI; |
— |
Proposal for a Regulation of the European Parliament and of the Council amending the annexes to Regulation (EC) No 883/2004 on the coordination of social security systems. |
The two proposals are based on Articles 42 and 308 of the Treaty.
Acting in accordance with Article 251 of the Treaty, the European Parliament adopted, on 9 July 2008, a single Opinion in first reading consisting in 77 amendments to the proposal for a Regulation amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of Annex XI. (3) It considered that the procedure relating to the second proposal had lapsed as a result of the incorporation of its contents into the procedure relating to the first proposal.
The Economic and Social Committee delivered its opinions on 26 October 2006 (4).
The Commission presented its amended proposals on 15 October 2008. Taking into consideration amendment 1 of the European Parliament, the amended proposals acknowledge the merging of the two original proposals into a single text. The Commission accepted all the amendments adopted by the European Parliament.
In accordance with Article 251(2) of the EC Treaty, the Council adopted its Common Position by unanimity on 17 December 2008. The Common Position also relates to both the original proposals which have been merged into a single text.
II. OBJECTIVE
While the proposal for an implementing Regulation provides for horizontal rules, the proposal for a Regulation determining the content of Annex XI, for its part, provides for supplementary provisions regarding specific aspects of individual Member States' legislation in order to ensure that the basic Regulation is smoothly applied in the Member States concerned. In accordance with the general objective of simplification, the proposal contains fewer entries than the corresponding Annex VI in the current Regulation (EEC) No 1408/71.
Annexes II and X of Regulation 883/2004, which had been left empty, have equivalent provisions in Annexes III and IIa of Regulation 1408/71. The remainder of the Annexes being amended by this proposal already contain provisions in respect of several Member States, but need to be completed to take account of the Member States which acceded to the EU after 29 April 2004. Some of these Annexes also have corresponding provisions in Regulation 1408/71. However, Annex I Part 1 (advances of maintenance payments) and Annexes III and IV (special rules for health care benefits) only apply to Regulation 883/2004.
III. ANALYSIS OF THE COMMON POSITION
1. General observations
a) Commission's amended proposal
The European Parliament adopted 77 amendments to the Commission's proposal. All of these amendments were incorporated into the amended Commission proposals in whole, in part or after being reworded (amendments Nos 1-5, 7-11, 13-24 and 26-78 rev).
b) Council's Common Position:
The Council could accept 70 of the 77 amendments, as wholly or partially incorporated into the Commission's amended proposal, namely amendments Nos 1-5, 7, 8, 10, 13-19, 21, 22 and 25-77.
However, the Council did not deem it advisable to take up amendments Nos 6, 11, 12, 20, 23, 24 and 78 rev. Moreover, while agreeing on the substance of amendment 9 concerning the definition of ‘benefits in kind’, the Council considered that this definition should be clarified further (Article 1(3)(va) of the Common Position).
2. Council's position on amendment 20 and the other related amendments
This issue concerns the right of the members of the family of a frontier worker to receive health care in the Member State where the worker is employed on the same conditions as those which are applicable to him/her.
Article 18(2) of the basic Regulation provides that ‘the members of the family of a frontier worker shall be entitled to benefits in kind during their stay in the competent Member State, unless this Member State is listed in Annex III’. Annex III of the basic Regulation lists the seven Member States which apply restrictions of the rights to benefits in kind for members of the family of a frontier worker.
Amendment 20 of the European Parliament (to which amendments Nos 6, 11 and 12 closely relate) states that a new paragraph 10a should be inserted into Article 87 of the basic Regulation which would provide that ‘Annex III shall be repealed 5 years after the date of application of the Regulation.’
The Council could not reach agreement by unanimity on this amendment in view of the opposition of five delegations. These delegations consider, as a matter of principle, that the provision set out in Article 18(2) of the basic Regulation should not be put into jeopardy in view, in particular, of the lack of experience with the application of the new Regulation. They stress that the delicate compromise adopted in Regulation No 883/2004, in which Parliament played an important role, should not be changed. Before taking any further step, they would prefer not to extend the rights of the family members of cross-border workers as regards health care beyond that which is provided for in Regulation (EEC) 1408/71 as, in their view, a decision, at this stage, to repeal Annex III after a period of 5 years, would be premature.
On the other hand, all the other delegations could accept this amendment in a spirit of compromise. Moreover, the delegations of six of the Member States listed in Annex III to the Common Position took an even more flexible stance, as they could accept to repeal Annex III after a period of four years. In this context, the Italian delegation, which could not accept amendment 24 as it considered it necessary to have an entry in Annex III, took a compromise stance on amendment 20 as it accepted that the period of validity of its entry be limited to four years.
In view of this situation, and bearing in mind the importance of this issue for the European Parliament, a compromise solution was eventually reached by unanimity according to which:
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Articles 18(2) and 28(1) of the basic Regulation would be amended to provide that Annex III would be reviewed 5 years after its application, and |
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A new paragraph (10a) would be added to Article 87 of the basic Regulation to provide that the period of validity of some Member States' entries in Annex III would be limited to 4 years. |
The Council considers that this represents a both realistic and balanced solution which clearly goes in the direction of the European Parliament's position. It hopes that Parliament will be able to accept it.
3. Council's position on amendment 23
Amendment 23 relates to Annex II to the basic Regulation (Provisions of Conventions which remain in force and which, where applicable, are restricted to the persons covered thereby). In point 36 of this Annex, under the Portugal-United Kingdom entry, Parliament includes a reference to Article 2(1) of the Protocol on medical treatment of 15 November 1978 which is already covered by Annex III of Council Regulation (EEC) No 1408/71.
This Protocol does not appear in Annex II in the Council's Common Position as the two Member States concerned have indicated that they have decided not to apply Article 2(1) of this Protocol as from 1 September 2008.
4. Council's position on amendment 78 rev
Amendment 78 rev aims, among others, to maintain the entry ‘Italy’ in Annex IV of the basic Regulation, which provides that the Member States listed in this Annex will provide more rights for pensioners returning to the competent Member State (Article 27(2) of the basic Regulation). As far as this entry is concerned, this amendment was not acceptable to the Council acting on the basis of unanimity.
After the adoption of the basic Regulation, the Italian competent authorities reassessed their position, preferring not to grant, for the time being, additional rights for pensioners. In the light of these new developments, the Commission proposed, in its original proposal amending the annexes to Regulation (EEC) No 883/2004, that the entry ‘Italy’ should be deleted from Annex IV. The Italian delegation could go along with the Commission's proposal.
The Commission has accepted the Common Position agreed by the Council.
5. Specific comments
The Council considered it necessary to make the following changes to the Commission proposal:
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Article 15 of the basic Regulation: the terms ‘auxiliary staff’ have been replaced by the terms ‘contract staff’ in the Common Position in accordance with the Staff Regulations; |
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Article 36(1) of the basic Regulation: the Council considered it necessary to provide that Articles 17, 18(1), 19(1) and 20(1) will also apply to benefits relating to accidents at work or occupational diseases; |
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Furthermore, the Council was of the view that a new paragraph 2a should be added to Article 36 of the basic Regulation in order to include the principle set out in Article 33 of the Commission proposal for a Regulation laying down the procedure for implementing Regulation (EC) No 883/2004; |
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Article 87(8) of the basic Regulation: the Council considered it necessary to replace the current paragraph 8 with a new paragraph to specify the maximum time period during which a person will be subject to the legislation of a Member State other than the one determined in accordance with Title II of Council Regulation (EEC) No 1408/71. |
IV. CONCLUSION
The Council welcomes the spirit of cooperation which prevailed with the European Parliament during the first reading of this significant element of ancillary legislation and which allowed the two institutions already to reduce to a very large extent the scope of potential disagreement.
In particular, the Council appreciates the European Parliament's initiative with regard to the merging of the proposal amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of Annex XI, with the proposal amending the annexes to that Regulation.
It considers that its Common Position goes largely in the direction of the concerns voiced by Parliament.
It looks forward to pursuing this constructive discussion with the European Parliament, with a view to reaching final agreement on this complementary legislation as soon as possible, in view of the overriding interest of the early entry into application of the complete package of new rules regarding the modernisation and simplification of the coordination of social security systems.
(1) OJ L 166, 30.4.2004, corrected version in OJ L 200, 7.6.2004, p. 1.
(2) Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, OJ L 149 of 5.7.1971, p. 2. Regulation last amended by Regulation (EC) No 1992/2006 (OJ L 392 of 30.12.2006, p. 1).
(3) Not yet published in the Official Journal.