6.1

Equal treatment and the export of pensions: 6.1.1 Take the situation of nationals of Member States A and B working in non-EU country C, which does not make legal provision for the social security affiliation of non-nationals or for the export of pensions and has a bilateral agreement with Member State A, covering the maintenance of acquired social security rights (export of pensions) but not with Member State B. In such a case, the nationals of Member State A and Member State B are in completely different situations. Whereas the former will be entitled to social security from State C and, if entitled to a pension, will be able to receive it in their country of origin if they return, the latter will have no pension rights, and even if they do, they will not be able to receive their pensions in their country of origin. This is an example of different treatment due to the existence or non-existence of a bilateral agreement, which usually depends on whether State C has an interest in negotiating such an agreement with one or the other EU Member State. In view of this fact, it would make far more sense for a social security agreement to be negotiated directly between the EU and country C. Another possibility would be to include social security sections in broader agreements (regional, multipartite, partnership, etc.), containing clauses on equal treatment and the export of pensions. 6.1.2 Take the situation of nationals of Member States A and B, who are given a two-year posting to non-EU country C, whose legislation requires all people working in its territory to pay contributions. Furthermore, Member States A and B both require contributions to be paid for posted workers. For its part, Member State A has a bilateral agreement with State C, under which contributions are paid only in the country of origin whereas companies based in Member State B will have to pay double contributions, i.e. in their own country and in State C. In the latter case, companies posting workers will lose competitiveness because their social costs are higher, which could be avoided if the EU concluded a social security agreement directly with this non-EU country. 6.1.3 Take the situation of nationals of non-EU countries C and D working in Member State A, which has a social security agreement with State C but not with State D. The Member State makes no legal provision for equal treatment or the export of pensions and the nationals of countries C and D are not protected by any EU legislation (e.g. they could be seasonal workers). These workers will not receive the same protection (full rights for State C nationals and none for State D nationals), with the result that the principle of equal treatment will not be fully applied. This would not happen if the EU negotiated a social security agreement with State D. 6.1.4 Take the situation of nationals of non-EU country C working in Member States A and B. Member State A makes legal provision for the export of pensions or it has an agreement with State C on the export of pensions, but B does not. Both workers have acquired pension rights in the Member State where they worked and then returned to their countries. Those who had worked in Member State A will be able to receive a pension but those who had worked in Member State B will lose their pension rights. This would not happen either, if there were an EU agreement covering these and other social security rights. 6.1.5 Take the situation of nationals of a non-EU country working in Member States A and B. The social security legislation of State A recognises the principle of equal treatment in the area of social security, but not State B's. Thus contributions would be paid for third-country nationals in the first case, but not in the second. This would give State B a financial advantage and would undermine the concept of Europe as a non-discriminatory level playing field. An EU agreement would also solve this problem.