# EUR-Lex - 52012PC0152 - EN

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# 52012PC0152

**Proposal for a COUNCIL DECISION on the position to be taken on behalf of the European Union within the Association Council set up by the Agreement establishing an association between the European Economic Community and Turkey with regard to the provisions on the coordination of social security systems /* COM/2012/0152 final - 2012/0076 (NLE) */**

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EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

Grounds for and objectives of the
proposal

It follows from Article 12 of the Agreement
establishing an association between the European Economic Community and Turkey[1] ("the Ankara
Agreement") and Article 36 of the Additional Protocol to the Ankara
Agreement[2]
("the Additional Protocol") that freedom of movement for workers
between the Union and Turkey is to be secured by progressive stages. Article 9
of the Ankara Agreement provides that within the scope of the Agreement any
discrimination on grounds of nationality shall be prohibited. Article 39 of the
Additional Protocol lays down that the Association Council shall adopt social
security measures for workers of Turkish nationality moving within the Union and
for their families residing in the Union, and lists some coordination
principles which those measures should implement.

As a first step towards the implementation
of these social security coordination principles in the Ankara Agreement and
its Additional Protocol, Decision No 3/80 of the Association Council on the
application of the social security schemes of the Member States of the European
Communities to Turkish workers and members of their families was adopted by the
Association Council on 19 September 1980[3]
("Decision No 3/80"). The second step, namely the adoption of a
Regulation to implement the provisions of Decision No 3/80, was never taken. [4]

In the meantime, the Court of Justice has
held that Article 3(1) of Decision No 3/80, the principle of non-discrimination,
and Article 6 of this Decision, the requirement to waive residence clauses in
respect of benefits payable under the Decision, have direct effect and can be
relied upon before the national courts.[5]

In order to provide legal certainty and to
give full effect to the principles of social security coordination contained in
the Ankara Agreement and its Additional Protocol, it is necessary that a new
decision is adopted by the Association Council, to replace Decision No 3/80.
The Commission's previous proposal to implement Decision No 3/80 will be
withdrawn, as it is envisaged that the new Association Council decision will
implement in one step the obligations in the Agreement and its Protocol.

General context

The provisions of the Ankara Agreement and
the Additional Protocol on the freedom of movement of workers and the measures
adopted to implement them, in particular Association Council Decision No 1/80,
should be accompanied by appropriate social security coordination measures.
Moreover, Article 39 of the Additional Protocol contains explicit provisions
for coordination between the social security systems, which need to be
implemented. A Decision of the Association Council is required to that effect.

A number of other Association Agreements with
third countries contain also provisions on the coordination of social security
systems. This proposal is part of a package of proposals which includes similar
proposals with regard to the Agreements with Albania, Montenegro and San
Marino. A first package with similar proposals in respect of Algeria, Morocco,
Tunisia, Croatia, the former Yugoslav Republic of Macedonia and Israel was
adopted by the Council in October 2010.[6]

In order to establish the position to be
taken by the Union in the Association Council, a Council Decision is necessary.

Existing provisions in the area of the
proposal

At the level of the European Union, Member
States' social security systems are coordinated by Regulation (EC) No 883/2004[7] and its implementing Regulation
(EC) No 987/2009[8].

Council Regulation (EU) No 1231/2010[9] extends the provisions of
Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of
third countries who are not already covered by those provisions solely on the
grounds of their nationality. This Regulation already covers the principle of
aggregation of insurance periods acquired by Turkish workers in the various
Member States regarding entitlement to certain benefits, as set out in Article 39
(2) of the Additional Protocol to the Agreement with Turkey.

Consistency with other policies and
objectives of the Union

Turkey has been associated with the
European integration project ever since the signature of the Ankara Association
Agreement in 1963, which was supplemented in 1970 with an Additional Protocol.
These agreements provide as an aim, to be achieved by
progressive stages, the free movement of workers between Turkey and the EU. As
a corollary to these provisions that set out a programme, Article 39 of the Additional Protocol lays down provisions on social
security coordination. Full implementation of these provisions will enhance the special relationship with Turkey, as envisaged in Article 8 TEU. At the same time, it will permit Turkey
to align its policies on social security coordination with those of the EU in
preparation for future accession to the EU.

2.           RESULTS OF CONSULTATIONS
WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS

Consultation of interested parties

This proposal for coordination of the
social security systems of the Member States and Turkey will replace Decision
No 3/80. The proposal is modelled almost identically on the package of six
draft Association Council Decisions, respectively Stabilisation and Association
Council Decisions, in respect of Algeria, Morocco, Tunisia, Croatia, the former
Yugoslav Republic of Macedonia and Israel, in respect of which the European
Union position was decided by the Council in October 2010. Detailed negotiation
took place in Council in 2010 on the content of such decisions. These
negotiations were preceded by an intensive discussion with all Member States in
the Administrative Commission for the Coordination of Social Security Systems.

Collection and use of expertise

There was no need for external expertise.

Impact assessment

Article 39 of the Additional Protocol to
the Agreement with Turkey contains provisions on coordination between the
social security systems of Member States and Turkey. A number of other agreements
with third countries contain also provisions on the coordination of social security
systems. All of them require a Decision of the relevant body set up by these
agreements so that the principles, as set out in Article 39, can take effect.

The aim of the provisions on social
security in such agreements is that a worker from the associated country
concerned can receive certain social security benefits provided under the
legislation of the Member State(s) to which he is or has been subject. This
also applies, by way of reciprocity, to an EU national working in the
associated country.

As all the provisions included in the
current package of proposals with regard to the four associated countries (Albania,
Montenegro, San Marino and Turkey) are almost identical – and also almost
identical to the first package of six decisions in respect of Algeria, Morocco,
Tunisia, Croatia, the former Yugoslav Republic of Macedonia and Israel adopted
by the Council in 2010, this will facilitate the application of these
provisions by Member States' social security institutions. There might be some
financial implications for national social security institutions resulting from
the application of these proposals, since they have to provide, for example,
the benefits as described in Article 39 of the Additional Protocol. However,
this Article only concerns persons who are or have been contributing to the
national social security system of the country concerned, as provided for under
its national legislation. In any case, it may be difficult to gauge the precise
impact of these proposals on the national social security systems at this
stage.

3.           LEGAL ELEMENTS OF THE
PROPOSAL

Summary of the proposed action

This proposal consists of a Council
Decision on the position to be taken on behalf of the Union within the
Association Council established by the Agreement with Turkey and, in the Annex,
of a draft Decision of the Association Council in the social security field.

The proposed Association Council Decision fulfils
the requirement of Article 39 of the Additional Protocol for such a Decision,
in order to put in place the social security principles contained therein. The
Decision contains moreover implementing provisions with regard to those
provisions of Article 39 of the Additional Protocol to the Agreement with Turkey
which are not already covered by Regulation (EU) No 1231/2010. In addition,
specific provision is made – as was made in Decision No 3/80 - to implement
Article 9 of the Agreement in the field of social security coordination.

Moreover, the proposed Decision of the
Association Council ensures that the provisions on the export of benefits and
the granting of family benefits also apply, by way of reciprocity, to EU
workers legally employed in Turkey and to their family members legally resident
in Turkey. As the Association Council Decision would in doing so go beyond the
scope of Article 39 of the Additional Protocol, the draft Association Council
Decision is also based on Article 22(3) of the Ankara Agreement.

Legal basis

The Council Decision on the position to be
taken in the Association Council should be based on Article 218(9) of the
Treaty on the Functioning of the European Union (TFEU) in conjunction with
Article 48 TFEU.

Indeed, the Ankara Agreement and the
Additional Protocol provide for a legal situation which has to be distinguished
from the legal situation set by the other relevant Association Agreements with
social security provisions, since – in contrast with these other agreements -
the Ankara Agreement and the Additional Protocol clearly provide for the free
movement of workers as a goal to be secured in progressive stages. In this
context, the notion of free movement of workers has to be understood in the
same way as in the relevant Union provisions (cf. Article 12 of the Ankara
Agreement).

It is true that the free movement of
workers between Turkey and the EU has not at all been achieved, and that it is
therefore not possible to describe the current legal situation as an extension
of the internal market with respect to free movement of persons (as is the case
for the EEA and Switzerland). Nevertheless, in view of the different
perspective set by the Association Agreement and the Additional Protocol, which
aim at extending so far as possible to Turkish nationals the principles laid
down in the Union provisions on free movement of workers[10], the implementation of the
social security provisions, which constitute a necessary corollary to the
movement of workers, must in the same way find its legal basis in Article 48
TFEU.

Subsidiarity principle

The Additional Protocol provides for
principles on coordination of social security systems which have to be applied
equally by all Member States. The implementation of these principles should
therefore be submitted to uniform conditions, which can be better achieved at
Union level..

Proportionality principle

The proposal complies with the
proportionality principle for the following reasons.

Member States continue to have exclusive
competence in determining, organising and financing their national social
security systems.

The proposal only organises the coordination
of social security systems of Member States and Turkey for the benefit of the
citizens of these countries. Moreover, the proposal does not affect any rights
and obligations arising from bilateral social security agreements concluded
between the Member States and Turkey where the latter provide for more
favourable treatment of the persons concerned.

The proposal minimises the financial and
administrative burden for national authorities as it is part of a package of
similar proposals which ensure a uniform application of social security
provisions contained in Association Agreements with third countries.

Choice of instruments

Proposed instruments: Council Decision
(containing in Annex a draft Association Council Decision).

Other means would not be adequate for the
following reasons.

There is no alternative option to the
proposed action. Article 39 of the Additional Protocol to the Agreement
requires a Decision of the respective Association Council. Article 218 (9) of
the Treaty provides for a Council Decision for the purpose of establishing the
positions to be adopted on behalf of the Union in a body set up by an
Agreement, when that body is called upon to adopt decisions having legal
effects.

4.           BUDGETARY IMPLICATION

The proposal has no implications for the Union
budget.

5.           OPTIONAL ELEMENTS

Simplification

The proposal will lead to simplification of
administrative procedures for national public authorities, and simplification
of administrative procedures for private parties.

Detailed explanation of the proposal

A. Council Decision on the position to
be taken on behalf of the Union within the Association Council created by the Association
Agreement with Turkey with regard to the provisions on the coordination of
social security systems.

Article 1

This Article provides for the adoption of
the EU position in the EU - Turkey Association Council.

B. Annexed draft Decision of the
Association Council with regard to the provisions on the coordination of the
social security systems contained in the Agreement.

Part I: General provisions

Article 1

This Article defines, for the purposes of
the legislation of a Member State and for the purpose of the legislation of Turkey,
the terms "Agreement", "Regulation", "implementing
Regulation", "Member State", "worker", "member of
the family", "legislation", "benefits" and "exportable
benefits", and refers to the Regulation and implementing Regulation for
the other terms used in the annexed Decision.

Article 2

In line with the wording of Article 39 of
the Additional Protocol to the Agreement with Turkey, this Article defines the
persons covered by the annexed Decision.

Article 3

This Article provides for
non-discriminatory treatment of all persons covered by the Agreement with
regard to the social security benefits covered by it.

Part II

Relations between the Member States and Turkey

This Part of the annexed Decision covers
the principles contained in Article 39(4) of the Additional Protocol with Turkey
as well as the reciprocity clause with regard to EU nationals and the members of
their family.

Article 4

This Article contains the principle of the
export of cash benefits as provided for in Article 39(4) of the Additional
Protocol with Turkey and makes it clear that this principle is limited to the
benefits contained in Article 1(1)(i) of the annexed Decision which lists the
benefits referred to in this paragraph.

Part III

Miscellaneous provisions

Article 5

This Article contains general provisions
for cooperation between Member States and their institutions, of the one part,
and Turkey and its institutions, of the other part, as well as between the
beneficiaries and the institutions concerned. These provisions are similar to those
of Article 76 (3), (4), first and third sub-paragraphs, and (5) of Regulation
(EC) No 883/2004.

Article 6

This Article lays down the procedures for
administrative checks and medical examinations similar to those contained in
Article 87 of Regulation (EC) No 987/2009. Moreover, it provides for the
possibility to adopt other implementing provisions in this area.

Article 7

This Article refers to the possiblity to
use the conflict settlement procedure laid down in the Agreement.

Article 8

This Article refers to Annex II to the
annexed Decision which is similar to Annex XI to Regulation (EC) No 883/2004,
and which is necessary in order to lay down the necessary special provisions
for the application of Turkish legislation with regard to the annexed Decision.

Article 9

This Article allows administrative
proedures from existing agreements between a Member State and Turkey to
continue to apply under certain conditions.

Article 10

This Article provides for the possibility
to conclude supplementary administrative Agreements.

Article 11

The transitional provisions provided for
under this Article are similar to the transitional provisions in Article 87
(1), (3), (4), (6) and (7) of Regulation (EC) No 883/2004. In addition, there
is a provision to protect the rights of Turkish workers who, as a result of the
judgment of the Court of Justice in Case C-485/07 Akdas concerning the direct
effect of Article 6(1) of Decision No 3/80, are prior to the entry into force
of the Decision being provided with a pension or benefit by a Member State.

Article 12

This Article clarifies the legal status of
the Annexes to the annexed Decision and the procedure for amending them.

Article 13

This Article clarifies the date of entry
into force of the annexed Decision.

2012/0076 (NLE)

Proposal for a

COUNCIL DECISION

on the position to be taken on behalf of
the European Union within the Association Council set up by the Agreement
establishing an association between the European Economic Community and Turkey
with regard to the provisions on the coordination of social security systems

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 48, in conjunction
with Article 218(9), thereof,

Having regard to the proposal from the
European Commission,

Whereas:

(1)       The Agreement establishing
an association between the European Economic Community and Turkey[11] ("the Agreement")
and the Additional Protocol to the Agreement of 23 November 1970[12] ("the Additional
Protocol") provide that the freedom of movement for workers between the
Union and Turkey is to be secured by progressive stages.

(2)       Article 9 of the Agreement
provides that within the scope of the Agreement any discrimination on grounds
of nationality shall be prohibited.

(3)       Article 39 of the
Additional Protocol provides that the Association Council shall adopt social
security measures for workers of Turkish nationality moving within the
Community and for their families residing in the Community.

(4)       As a first step towards
the implementation of Article 39 of the Additional Protocol and of Article 9 of
the Agreement in the field of social security, Decision No 3/80 on the
application of the social security schemes of the Member States of the European
Communities to Turkish workers and members of their families was adopted by the
Association Council on 19 September 1980[13]
("Decision No 3/80").

(5)       It is necessary to ensure
that in the field of social security Article 9 of the Agreement and Article 39
of the Additional Protocol are fully implemented.

(6)       There is a need to update
the content of Decision No 3/80 so that its provisions reflect developments in
the field of European Union social security coordination[14].

(7)       Decision No 3/80 should
therefore be repealed and replaced with a decision of the Association Council
that in one single step implements the relevant provisions of the Agreement and
the Additional Protocol regarding the coordination of social security systems,

HAS ADOPTED THIS DECISION:

Article 1

The position to be taken on behalf of the
European Union within the Association Council set up by the Agreement
establishing an association between the European Economic Community and Turkey,
with regard to the provisions for the coordination of social security systems,
shall be based on the draft decision of the Association Council attached to
this Decision.

Minor changes to the draft decision may be
agreed to by the representatives of the Union in the Association Council without
further decision of the Council.

Article 2

The Decision of the Association Council
shall be published in the Official Journal of the European Union.

Article 3

This Decision shall enter into force on the
day of its adoption.

Done at Brussels,

For
the Council

The
President

ANNEX

Draft

DECISION
No.../.... OF THE EU - TURKEY ASSOCIATION COUNCIL

of
...

with
regard to the provisions on the coordination of social security systems

THE ASSOCIATION COUNCIL,

Having regard to the Agreement establishing
an association between the European Economic Community and Turkey[15], and in particular Article
22(3) thereof,

Having regard to the Additional Protocol of
23 November 1970[16],
and in particular Article 39 thereof,

Whereas:

(1)
The Agreement establishing an association
between the European Economic Community and Turkey ("the Agreement")
and the Additional Protocol to the Agreement of 23 November 1970 ("the
Additional Protocol") provide that freedom of movement for workers between
the Union and Turkey is to be secured by progressive stages.

(2)
Article 9 of the Agreement provides that within
the scope of the Agreement any discrimination on grounds of nationality shall
be prohibited.

(3)
Article 39 of the Additional Protocol provides for
the coordination of the social security systems of Turkey and the Member States
and lays down the principles for such coordination.

(4)
Article 39 of the Additional Protocol provides
that the Association Council shall adopt social security measures for workers
of Turkish nationality moving within the Community and for their families
residing in the Community.

(5)
As a first step towards the implementation of
Article 39 of the Additional Protocol, Decision No 3/80 of the Association
Council on the application of the social security schemes of the Member States
of the European Communities to Turkish workers and members of their families
was adopted by the Association Council on 19 September 1980[17] ("Decision No
3/80").

(6)
It is necessary to ensure that in the field of
social security Article 9 of the Agreement and Article 39 of the Additional
Protocol are fully implemented.

(7)
It is necessary to update the content of
Decision No 3/80 so that its provisions reflect recent developments in the
field of European Union social security coordination.

(8)
Council Regulation (EU) No 1231/2010[18] already extends the provisions
of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of
third countries who are not already covered by those provisions solely on the
grounds of their nationality. Regulation (EU) No 1231/2010 already covers the
principle of aggregation of insurance periods acquired by Turkish workers in
the various Member States regarding entitlement to certain benefits, as set out
in Article 39(2) of the Additional Protocol.

(9)
Decision No 3/80 should therefore be repealed
and replaced with a decision of the Association Council that in one single step
implements all principles on the coordination of social security systems
contained in the Agreement and in the Additional Protocol.

(10)
With regard to the application of the
non-discrimination principle, this Decision should not give any additional
rights arising from certain facts or events occurring on the territory of the
other Contracting Party, where such facts or events are not taken into account
under the legislation of the first Contracting Party, other than the right to
export certain benefits.

(11)
In applying this Decision, the right of workers
to family benefits should be subject to the condition that their family members
legally reside with these workers in the Member State where the workers are
employed. This Decision should not give any entitlement to family benefits with
respect to members of their family who reside in another state, for instance
Turkey.

(12)
It might be necessary to lay down special
provisions which correspond to the specific characteristics of the legislation
of Turkey, in order to facilitate the application of the coordination rules.

(13)
To ensure the smooth functioning of the
coordination of the social security systems of the Member States and of Turkey,
it is necessary to provide for specific provisions regarding the cooperation
between the Member States and Turkey as well as between the person concerned and
the institution of the competent State.

(14)
Transitional provisions should be adopted to
protect the persons covered by this Decision and to ensure that they do not
lose rights as a result of its entry into force,

HAS ADOPTED THIS DECISION:

PART I

GENERAL PROVISIONS

Article 1

Definitions

1.           For the purposes of this
Decision

(a)          "Agreement" means the
Agreement establishing an association between the European Economic Community
and Turkey;

(b)          "Regulation" means
Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29
April 2004 on the coordination of social security systems[19] as applicable in the Member
States of the European Union;

(c)          "implementing
Regulation" means Regulation (EC) No 987/2009 of the European Parliament
and of the Council of 16 September 2009 laying down the procedure for
implementing Regulation (EC) No 883/2004 on the coordination of social security
systems[20];

(d)          "Member State" means a
Member State of the European Union;

(e)          "worker" means,

(i)      for
the purposes of the legislation of a Member State, a person pursuing an
activity as an employed person within the meaning of Article 1(a) of the
Regulation;

(ii)      for
the purposes of the legislation of Turkey, a person pursuing an activity as an
employed person within the meaning of that legislation;

(f)           "member of the family"
means,

(i)      for the
purposes of the legislation of a Member State, a member of the family within
the meaning of Article 1(i) of the Regulation;

(ii)      for the
purposes of the legislation of Turkey, a member of the family within the
meaning of that legislation;

(g)          "legislation" means,

(i)      in relation
to the Member States, legislation within the meaning of Article 1(1) of the
Regulation as applicable to the benefits covered by this Decision;

(ii)      in
relation to Turkey, the relevant legislation as applicable in Turkey relating
to the benefits covered by this Decision;

(h)          "benefits" means,

(i)      in relation to the Member States,
benefits within the meaning of Article 3 of the Regulation;

(ii)      in relation to Turkey, the
corresponding benefits applying within Turkey;

(i)           "exportable benefits"
means,

(i)      in relation
to the Member States:

–
old-age pensions,

–
survivors' pensions,

–
pensions in respect of accidents at work and
occupational diseases,

–
invalidity pensions,

within the meaning of the Regulation, with the
exception of special non-contributory cash benefits as listed in Annex X to the
Regulation;

(ii)      in relation to Turkey, the
corresponding benefits provided under the legislation of Turkey, with the
exception of special non-contributory cash benefits as set out in Annex I to
this Decision;

2.           Other terms used in this
Decision shall have the meaning which is assigned to them:

(a)          in relation to the Member States,
in the Regulation and the implementing Regulation;

(b)          in relation to Turkey, in the
relevant legislation as applicable in Turkey.

Article 2

Persons
covered

This Decision shall apply:

(a)          to Turkish workers who are or
have been legally employed in the territory of a Member State and who are or
have been subject to the legislation of one or more Member States, and their
survivors;

(b)          to the members of the family of
workers referred to in point (a) provided that these family members are or have
been legally resident with the worker concerned while the worker is employed in
a Member State;

(c)          to workers who are nationals of a
Member State who are or have been legally employed in the territory of Turkey
and who are or have been subject to the legislation of Turkey and their
survivors; and

(d)          to the members of the family of
workers referred to in point (c) provided that these family members are or have
been legally resident with the worker concerned while the worker is employed in
Turkey.

Article 3

Equality of Treatment

1.           Turkish workers who are
legally employed in a Member State and any members of their families legally
residing with them shall enjoy, with regard to the benefits within the meaning
of Article 1(1)(h), treatment free from any discrimination based on nationality
relative to nationals of the Member States in which those workers are employed.

2.           Workers who are nationals
of a Member State and are legally employed in Turkey and any members of their
families legally residing with them shall enjoy, with regard to the benefits
within the meaning of Article 1(1)(h), treatment free from any discrimination
based on nationality relative to nationals of Turkey.

Part II

RELATIONS
BETWEEN THE MEMBER STATES AND TURKEY

Article 4

Waiving of
residence clauses

1.           Exportable benefits within the meaning of Article 1(1)(i)
to which the persons as referred to in Article 2(a) and (c) are entitled shall
not be subject to any reduction, modification, suspension, withdrawal or
confiscation by reason of the fact that the beneficiary is residing,

(i)           for
the purpose of a benefit under the legislation of a Member State, within the
territory of Turkey, or

(ii)          for
the purpose of a benefit under the legislation of Turkey, within the territory
of a Member State.

2.           Family members of a worker
as referred to in Article 2(b) are entitled to exportable benefits within the
meaning of Article 1(1)(i)(i) in the same way as the family members of a worker
who is a national of the Member State concerned when these family members
reside within the territory of Turkey.

3.           Family members of a worker
as referred to in Article 2(d) are entitled to exportable benefits within the
meaning of Article 1(1)(i)(ii) in the same way as the family members of a
worker who is a national of Turkey when these family members reside within the
territory of a Member State.

PART III

MISCELLANEOUS
PROVISIONS

Article 5

Cooperation

1.           The Member States and Turkey shall communicate to each
other all information regarding changes in their legislation which may affect
the implementation of this Decision.

2.           For the purposes of this Decision, the authorities and
institutions of the Member States and of Turkey shall lend one another their
good offices and act as though implementing their own legislation. The
administrative assistance given by the said authorities and institutions shall,
as a rule, be free of charge. However, the competent authorities of the Member
States and of Turkey may agree to certain expenses being reimbursed.

3.           The authorities and
institutions of the Member States and of Turkey may, for the purposes of this
Decision, communicate directly with one another and with the persons involved
or their representatives.

4.           The institutions and
persons covered by this Decision shall have a duty of mutual information and
cooperation to ensure the correct implementation of this Decision.

5.           The persons concerned must
inform the institutions of the competent Member State or Turkey, where the
latter is the competent state, and of the Member State of residence or Turkey,
where the latter is the State of residence, as soon as possible of any change
in their personal or family situation which affects their right to benefits
under this Decision.

6.           Failure to respect the
obligation of information referred to in paragraph 5 may result in the
application of proportionate measures in accordance with national law.
Nevertheless, these measures shall be equivalent to those applicable to similar
situations under domestic law and shall not make it impossible or excessively
difficult in practice for claimants to exercise the rights conferred on them by
this Decision.

7.           The Member States and Turkey
may provide for national provisions that establish conditions for verification
of the entitlement to benefits to take into account the fact that the
beneficiaries are staying or residing outside the territory of the State where
the debtor institution is located. Such provisions shall be proportionate, free
from any discrimination based on nationality and in accordance with the
principles of this Decision. Such provisions shall be notified to the
Association Council.

Article 6

Administrative
checks and medical examinations

1.           This Article shall apply
to the persons as referred to in Article 2 and in receipt of exportable
benefits as referred to in Article 1(1)(i), as well as to the institutions in
charge of the implementation of this Decision.

2.           Where a recipient or a
claimant of benefits, or a member of his family, is staying or residing within
the territory of a Member State when the debtor institution is located in
Turkey or in Turkey when the debtor institution is located in a Member State,
the medical examination shall be carried out, at the request of that
institution, by the institution of the beneficiary’s place of stay or residence
in accordance with the procedures laid down by the legislation applied by that
institution.

The debtor institution
shall inform the institution of the place of stay or residence of any special
requirements, if necessary, to be followed and points to be covered by the
medical examination.

The institution of the
place of stay or residence shall forward a report to the debtor institution
that requested the medical examination.

The debtor institution
shall reserve the right to have the beneficiary examined by a doctor of its
choice, either in the territory where the recipient or claimant of benefit is
staying or residing or in the country where the debtor institution is located.
However, the beneficiary may be asked to return to the State of the debtor
institution only if he or she is able to make the journey without prejudice to
his health and the cost of travel and accommodation is paid for by the debtor
institution.

3.           Where a recipient or a
claimant of benefits, or a member of his family, is staying or residing in the
territory of a Member State when the debtor institution is located in Turkey or
in Turkey when the debtor institution is located in a Member State, the
administrative check shall, at the request of the debtor institution, be
performed by the institution of the beneficiary’s place of stay or residence.

The institution of the
place of stay or residence shall forward a report to the debtor institution
that requested the administrative check.

The debtor institution
shall reserve the right to have the situation of the beneficiary examined by a
professional of its choice. However, the beneficiary may be asked to return to
the State of the debtor institution only if he or she is able to make the
journey without prejudice to his health and the cost of travel and
accommodation is paid for by the debtor institution.

4.           One or more Member States
and Turkey may agree on other administrative provisions, subject to their
informing the Association Council thereof.

5.           As an exception to the
principle of free-of-charge mutual administrative assistance set out in Article
5(2) of this Decision, the effective amount of the expenses of the checks
referred to in paragraphs 2 and 3 of this Article shall be
refunded to the institution which was requested to carry them out by the debtor
institution which requested them.

Article 7

Application
of Article 25 of the Agreement

Article 25 of the Agreement shall apply in
case either Party considers that the other Party has not complied with the
obligations as laid down in Articles 5 and 6.

Article 8

Special
provisions for the application of the legislation of Turkey

The Association Council may, if necessary,
lay down special provisions for the application of the legislation of Turkey in
Annex II.

Article 9

Administrative
procedures from existing bilateral agreements

Administrative procedures contained in
existing bilateral agreements between a Member State and Turkey may continue to
apply provided that these procedures do not adversely affect the rights or
obligations of the persons concerned established by this Decision.

Article 10

Agreements
supplementing the procedures for implementing this Decision

One of more Member States and Turkey may
conclude agreements designed to supplement the administrative procedures for
implementing this Decision, especially with regard to preventing and combating
fraud and error.

PART IV

TRANSITIONAL
AND FINAL PROVISIONS

Article 11

Transitional
provisions

1.           No rights shall be
acquired pursuant to this Decision for the period before its entry into force.

2.           Subject to paragraph 1, a
right shall be acquired under this Decision even if it relates to a contingency
arising before its date of entry into force.

3.           Any benefit which has not
been awarded or which has been suspended by reason of the nationality or place
of residence of the person concerned shall, at the request of that person, be
provided or resumed with effect from the date of entry into force of this
Decision, provided that the rights for which benefits were previously provided
have not given rise to a lump-sum payment.

4.           If a request as referred
to in paragraph 3 is submitted within two years from the date of
entry into force of this Decision, the rights acquired in accordance with this
Decision shall have effect from the date of entry into force of this Decision,
and the legislation of any Member State or Turkey concerning the forfeiture or
limitation of rights may not be invoked against the persons concerned.

5.           If a request as referred
to in paragraph 3 is submitted after the expiry of the two-year period
following the date of entry into force of this Decision, rights not forfeited
or not time-barred shall have effect from the date on which the request was
submitted, subject to any more favourable provisions under the legislation of
any Member State or Turkey.

6.           The rights of a person to
whom a pension or special non-contributory cash benefit is being provided by a
Member State prior to the date of entry into force of this Decision as a result
of the direct effect of Article 6(1) of Decision No 3/80 of the Association
Council shall not be limited or forfeited as a result of this Decision.

Article 12

Annexes to
this Decision

The Annexes to this Decision constitute
an integral part thereof.

Article 13

Repeal

Decision No 3/80 of the Association Council
of 19 September 1980 shall be repealed from the date of entry into force of
this Decision.

Article 14

Entry into
force

This Decision shall enter into force on the
day following that of its publication in the Official Journal of the
European Union.

Done at Brussels,

For the Association Council

The President

ANNEX I

LIST
OF TURKISH SPECIAL NON-CONTRIBUTORY CASH BENEFITS

ANNEX II

SPECIAL
PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF TURKEY

[1]               OJ 217, 29.12.1964, p. 3687/64.

[2]               OJ L293, 29.12.1972, p.3.

[3]               OJ C110, 25.4.1983, p.60.

[4]               The Commission presented on 2.2.1983 a proposal for a
regulation to implement Decision No 3/80, COM(83) 13 .

[5]               ECJ, Case C-262/96, Sürül, Case C-485/07, Akdas.

[6]               OJ L306, 23.11.2010.

[7]               OJ L 166, 30.4.2004, p. 1.

[8]               OJ L 284, 30.10.2009, p. 1.

[9]               OJ L 344, 29.12.2010, p. 1. In
accordance with Protocols Nos 21 and 22, Denmark and the United Kingdom are not bound by or subject to the application of Regulation (EU) No 1231/2010. However, the United Kingdom continues
to be bound by and subject to the application of the previous Regulation (EC)
No 859/2003, OJ L124, 20.5.2003, p.1.

[10]             cf. ECJ, Case C-275/02, Ayaz, paragraphs 44-45,
Case C-467/02, Cetinkaya, paragraphs 42-43.

[11]               OJ 217, 29.12.1964, p.3687/64.

[12]               OJ L 293, 29.12.1972, p.3.

[13]               OJ C110, 25.4.1983, p.60.

[14]               Regulation (EC) No 883/2004 of the European
Parliament and of the Council of 29 April 2004 on the coordination of social
security systems, OJ L166, 30.4.2004, p.1; Regulation (EC) No 987/2009 of the
European Parliament and of the Council of 16 September 2009, OJ L284, 30.10.09,
p.1; Regulation (EU) No 1231/10 of the European Parliament and of the Council
extending Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to
nationals of third countries who are not already covered by these Regulations
solely on the ground of their nationality, OJ L344, 29.12.2010, p.1.

[15]               OJ 217, 29.12.1964, p.3687/64.

[16]               OJ L 293,29.12.1972, p.3.

[17]               OJ C110, 25.4.1983, p.60.

[18]               OJ L 344, 29.12.2010, p. 1.

[19]               OJ L 166, 30.4.2004, p.1.

[20]               OJ L 284, 30.10.2009, p. 1.