EN Official Journal of the European Union C 324/59

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems

COM(2006) 16 final — 2006/0006 (COD)

(2006/C 324/23)

On 24 February 2006 the Council decided to consult the European Economic and Social Committee, under Article 149 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 6 September 2006. The rapporteur was Mr Greif.

Due to the renewal of the Committee, the plenary decided to discuss this opinion at the October plenary session and to appoint Mr Greif as rapporteur-general in accordance with Rule 20 of the Rules of Procedure.

At its 430th plenary session, held on 26 October 2006, the European Economic and Social Committee adopted the following opinion by 118 votes to 0 with 3 abstentions:

1. The EESC's key political messages

1.1 The EESC welcomes the presentation of the implementing regulation for the new Regulation 883/2004 on the coordination of national social security systems as an important step towards improving free movement within the EU.

1.2 The EESC considers it appropriate, particularly in the current European Year of Workers' Mobility, to call on Member States to work towards bringing the implementing regulation into force as quickly as possible. Only then can the new Regulation 883/2004 be implemented and the attendant improvements and simplifications come into effect.

1.3 Rapid adoption would be more than a symbol, as the aim is in fact to take a concrete step towards giving the citizens of Europe greater opportunities for mobility. The implementation of Regulation 883/2004 and the implementing regulation under discussion here would substantially simplify, clarify and improve the coordination of social security systems for all beneficiaries and users.

1.4 In particular, the EESC welcomes the wider scope of the regulation — to cover more persons and more areas of social security — and all the provisions to improve cooperation between social security institutions.

1.5 The EESC calls on the Commission to take the necessary steps to adapt all the regulations and treaties that extend the coordination of social security systems to the European Economic Area, Switzerland, Greenland and nationals of third countries as soon as possible. All of the above-mentioned regulations and treaties contain references to Regulation 1408/71 and its implementing regulation 574/72. The appropriate changes with reference to new Regulation 883/2004 must be complete by the time it comes into force.

1.6 With regard to better and faster procedures for the exchange of data, the EESC recognises the potential for cost savings in administration and the advantages to insured persons of speeding up procedures for cross-border cases. However, the EESC also points out that speeding up the transfer of data alone will not constitute a breakthrough. The desired efficiency in processing times will only be achieved if the institutions in the Member States have sufficient and properly qualified staff with appropriate technical resources.

1.7 In connection with the future transfer of data largely by electronic means, the EESC also emphasises its concerns that the data in question are of a sensitive, personal nature (relating, for example, to health, incapacity and unemployment). It is therefore essential to ensure that these data are properly secure and cannot fall into the wrong hands.

1.8 The EESC also calls for lessons to be learnt from the implementation of the European health insurance card, inter alia as regards the ongoing shortcomings in its practical use in individual Member States. Member States are encouraged to take appropriate steps to ensure that European citizens can make full use of the advantages of the new arrangements, especially in the area of health insurance.

1.9 The EESC expressly welcomes all those measures in the implementing regulation that are intended to offer more legal certainty and transparency to all users of the new coordinating regulation. In the past, there have been instances between Member States where debts arising between institutions were not paid even after several years. The EESC hopes that payment practice between states will be significantly improved, although shortcomings in enforcing the collection of outstanding debts between social security institutions still remain.

1.10 The EESC wonders whether the provisions in the regulation and the implementing regulation — in particular the inclusion of economically inactive persons in its scope — might give rise to a process whereby the EU's generous social security systems were weakened and benefits gradually eroded. In this connection, the EESC believes that steps must be taken to produce comparable and meaningful data showing the current and expected future cross-border drawing of health and social security benefits in the EU. Changes relating to the applicability of Regulation 883/2004 are particularly interesting.

1.11 Finally, the EESC calls on the Commission and the Member States to strengthen measures to raise awareness among all potential users of the regulation of the arrangements for and advantages of coordination of social security systems. The necessary preparations for this should, in the Committee's view, be started immediately.

2. Introduction

2.1 The Community rules on the coordination of national social security systems are currently laid down by Regulation (EEC) No 1408/71 and its implementing regulation, Regulation (EEC) No 574/72. Over the years, these two regulations have been modified and updated several times. Regulation 1408/71 is to be replaced by Regulation (EC) 883/2004 of the European Parliament and the Council, which was adopted on 29 April 2004.

2.2 These regulations on the coordination of national social security systems are intended to define the measures necessary for the persons covered to travel, stay or reside in another Member State without losing their social security entitlements. To ensure that rights are safeguarded, the regulations provide for different procedures to meet specific needs in the various branches of social security and for the practicalities of coordination. It is thus a matter of coordinating rather than harmonising the systems.

2.3 Article 89 of new Regulation 883/2004 provides that a further regulation shall lay down the procedure for implementing the said regulation. Only when this implementing regulation (COM(2006) 16 final), which was published in draft form on 31 January 2006 and is the subject of this EESC opinion, comes into force, can the new Regulation 883/2004 be implemented after entering into force. Until such adoption, Regulation 1408/71 and its implementing Regulation 574/72 remain fully in force.

2.4 The separation between basic regulation and implementing regulation has become established practice in the way Community law deals with coordinating the social security systems in the Member States. The basic regulation sets out principles, whereas the implementing regulation is more technical.

2.4.1 The current draft of the implementing regulation can therefore be seen as a user manual, so to speak, for Regulation (EC) 883/2004. Thus, the idea is to clarify any remaining questions of an administrative or procedural nature and to deal with certain aspects of Community-wide coordination that require specific procedures.

2.4.2 For example, in the area of old-age pensions, it is necessary to specify what steps insured persons must take in order to apply for payment of their pensions, to which institution the claim must be submitted (where they have worked in several Member States), how the institutions are to exchange information to ensure that the insured person's full career is taken into account, and how each institution is to calculate the pension to be paid for the relevant period.

2.5 However, the separation between fundamentals and technical aspects is not very clear in practice. The current implementing regulation contains a number of points that belong more logically in the basic Regulation 883/2004.

2.5.1 The negotiations concerning Regulation 883/3004, which took more than six years, were fortunately brought to a positive conclusion in April 2004 before the last round of EU enlargement, and were thus saved from being delayed still further. A consequence of this was that parts of Regulation 883/2004 were unfinished (for example some empty annexes, in particular Annex XI). Thus, some substantive issues that more logically belong in basic Regulation 883/2004 are left to be dealt with in the current implementing regulation. This relates in particular to aspects of financial settlement between social security institutions. There are no outstanding substantive issues relating to the rights of citizens.

2.5.2 This EESC opinion will pay particular attention to the above-mentioned substantive issues.

3. Key points of the implementing regulation

3.1 The proposed implementing provisions are intended to: — Simplify and streamline legislation and administrative procedures — Clarify the rights and obligations of all those affected by the coordination of social security systems (social security institutions, competent authorities, employers and insured persons, employees and self-employed people) — Improve the coordination between social security institutions so as to prevent the administrative burden falling primarily on insured persons — Simplify the procedures for insured persons for the reimbursement of payment of benefits in cross-border cases, and reduce response and processing times — Implement better and faster procedures for exchanging data (in particular by promoting the electronic exchange of information and work on electronic documents) — Cut administration costs (inter alia through more efficient reimbursement of claims between social security institutions) — Bring about progress in the fight against fraud and abuse (inter alia through more effective mechanisms for cross-border recovery of claims).

3.2 The new implementing regulation differs significantly in terms of its structure from Regulation 574/72 implementing Regulation 1408/71. This is largely because the structure of the new implementing regulation follows that of the new basic Regulation 883/2004, which differs substantially from basic Regulation 1408/71 on a number of points. The most significant difference is that the new Regulation 883/2004 is wider in terms of the persons and areas of social security covered than the current Regulation 1408/71. In addition, the focus in the new Regulation 883/2004 has been put on general provisions and definitions, which differs from the special provisions contained in the chapters on individual classes of insurance in Regulation 1408/71.

3.2.1 Regulation 1408/71 was originally only designed for employees and their dependants. At the beginning of the 1980s, the scope was extended to include self-employed people. At the end of the 1990s, this was further extended to cover civil servants and students.

3.2.2 In order to fall within its scope, a person had to be a citizen of a Member State or resident in a Member State as a stateless person or refugee. Family members and survivors are also included.

3.2.3 Survivors are also included if they are citizens of a Member State, in which case the nationality of the person from whom the rights are derived is not relevant.

3.2.4 Regulation 883/2004 now applies to all EU citizens who are insured under national legislation, as non-employed persons are also fully covered.

3.2.5 The scope of what is covered is also wider than under Regulation 1408/71. In new Regulation 883/2004, in addition to the existing arrangements, early retirement pensions and paternity benefits equivalent to maternity benefits are included. However, in contrast to Regulation 1408/71, advances on maintenance payments are no longer included within the scope of Regulation 883/2004.

3.2.6 Regulation 883/2004 now applies to all legislation that affects the following areas of social security: a) sickness benefits; b) maternity and equivalent paternity benefits; c) invalidity benefits; d) old-age pensions; e) survivor's pensions; f) benefits in respect of accidents at work and occupational diseases; g) death grants; h) unemployment benefits; i) early retirement pensions; j) family benefits.

3.3 The extension of the scope necessitates certain new rules and procedures that are tailored to these groups of people, including, for example, provisions defining the legislation applicable for taking account of the periods that people who have never been employed or self-employed devoted to bringing up children in their various countries of residence.

3.4 The structure of the current implementing regulation follows that of the basic Regulation 883/2004: Title 1 deals with general rules, Title 2 deals with the applicable legislation, and Title 3 covers specific provisions for the various categories of benefits, followed by financial provisions (Title 5) and transitional and final provisions. In its specific comments on individual articles of the regulation, the Committee will concentrate on the general rules and the applicable legislation rather than on the details of the individual types of benefits.

3.4.1 The annexes to the implementing regulation are currently empty and must be completed. They include implementing provisions for agreements that remain in force, and new implementing provisions for agreements (Annex 1), special schemes for civil servants (Annex 2), Member States reimbursing the cost of benefits on a lump-sum basis (Annex 3) and the list of competent authorities and institutions already mentioned (Annex 4).

3.5 In addition, many measures and procedures provided for in the regulation are intended to ensure greater transparency of the criteria which the institutions of the Member States must apply under Regulation 883/2004.

3.5.1 Thus, numerous definitions that have been grouped together in the general provisions in Title 1 of Regulation 883/2004 were spread over different categories of social security in Regulation 1408/71, which in some cases dealt with them inconsistently. There is more emphasis on general definitions and fewer definitions in the individual chapters. Thus, the new regulation does not treat each category of insurance as a different world with its own rules.

3.5.2 Article 5 (equal treatment of facts) is also a significant step. This stipulates that Member States are to take account of facts or events occurring in another Member State as though they had taken place in their own territory.

3.6 The content of the basic regulation and implementing regulation only applies to cross-border matters between at least two Member States. Only in these cases are there any additional requirements for insured persons or employers, such as informing the social security institution of a posting abroad. What other responsibilities insured persons and employers have in the competent Member State remains a matter for the Member States and is not affected by the basic regulation or the implementing regulation.

4. General comments

4.1 The EESC welcomes the presentation of the implementing regulation for the new Regulation 883/2004 on the coordination of national social security systems. This proposal is a step towards better conditions for free movement within the EU. It does not contain any significant problems for the various bodies responsible for implementing the laws and administrative procedures for coordinating social security systems in the Member States, nor does it appear to contain any provisions that might cause problems for insured persons.

4.2 On the contrary, the draft regulation contains many simplifications, clarifications and improvements. In particular, the EESC welcomes its wider scope — to cover more persons and more areas of social security — and all the provisions to improve cooperation between social security institutions.

4.2.1 The expansion of the scope to cover more persons will have the greatest effect on the numbers of people covered in those countries in which insurance cover is based on residency. In countries in which insurance cover is linked to employment, the effect is less noticeable, as hardly any new groups of people are included.

4.3 Therefore, the EESC repeats its call, aimed in particular at the Member States and made in previous opinions, to push forward with processing the draft implementing regulation as quickly as possible and to work to ensure that it enters into force as soon as possible. The new regulation on coordination and the attendant improvements and simplifications must be put into effect as quickly as possible (1).

4.4 The current draft for the implementation of Regulation 883/2004 has taken some time to see the light of day, around a year and a half having passed since the adoption of Regulation 883/2004. It has been on the table since the beginning of 2006. In view of the complexity and breadth of the subject matter, and of the large number of questions remaining, it will certainly take some time for all the practical and procedural details in the individual Member States to be dealt with by the Council and the Administrative Commissions.

4.4.1 It is planned that the implementing regulation will come into force at the beginning of 2008. As stipulated in Article 91, the regulation comes into force six months after its publication in the Official Journal of the European Union. This length of time seems necessary, but also sufficient for adapting systems to the new regulations. An extension of the six-month period between publication and entry into force should certainly be avoided.

4.4.2 To facilitate the rapid implementation of the basic regulation, the EESC therefore calls on the Member States to provide their social security institutions, without delay, with the necessary resources in terms of staff and equipment to enable them to adapt quickly. Existing instruments at national level — in particular the existing TRESS networks (2), which bring together the interested parties and players in the Member States — should be used to carry out an appropriate evaluation of the practical implementation of this regulation in individual Member States once it enters into force. The EESC calls on the Commission to support these measures. An extension of the six-month period between publication and entry into force should certainly be avoided.

4.5 Moreover, work is still being done on Regulation 883/2004 itself. In particular, Annex XI needs mentioning here. When the regulation was adopted in 2004, this annex was not completed and is now being dealt with and discussed alongside the draft implementing regulation in the Council working group.

4.5.1 Annex XI does not only affect Regulation 883/2004, but also the implementing regulation itself. The two documents cannot be viewed separately from each other. Annex XI deals with Special provisions for the application of the legislation of the Member States. The content of this annex must be determined by the European Parliament and by the Council before the date of application of the implementing regulation.

4.5.2 This annex may define specific procedures for implementing certain laws. In it, the Member States try to uphold certain national provisions. Annex XI is one of the most controversial parts of the regulation, in that it may contain quite a number of entries. The EESC will express a separate view on this matter directly after this opinion.

4.6 In particular, the pursuit of vested interests must not, inter alia in the context of the European Year of Workers' Mobility 2006 proclaimed by the Commission, further delay the entry into force of the new coordinating Regulation 883/2004 and with it the application of all the improvements already adopted. Rapid adoption would be more than a symbol, as the aim is in fact to take a concrete step towards giving the citizens of Europe greater opportunities for mobility (3).

4.7 The EESC points out that Regulation 1408/71 and its implementing regulation 574/72 remain in force for certain groups of people even if Regulation 883/2004 enters into force, unless other regulations or agreements are also altered. (See Article 90 of the basic regulation and Article 90 of the implementing regulation.)

4.7.1 The scope of the rules for coordinating social security set out in 1408/71 was widened to additional groups of people over the years. This inclusion of additional groups of people was not, however, laid down in Regulation 1408/71 or 574/72 itself, but in specific additional regulations or agreements.

4.7.2 Firstly, this affects the applicability of the rules on coordination for third country nationals, their family members and their survivors, which is covered by Regulation 859/2003. Since 1 June 2003, third country nationals lawfully resident in a Member State are covered by the coordination rules in the same way as EU citizens. An important point to remember is that the inclusion of third country nationals within the scope applies only to cross-border issues between at least two Member States involving these insured persons, and not to cross-border issues between their home country and an EU country.

4.7.3 Secondly, the provisions of Regulations 1408/71 and 574/72 have applied to EEA Member States and their citizens since 1994. The agreement with Switzerland on the free movement of persons, which has been in force since 1 June 2002, expands the scope of the coordinating rules to Switzerland. Regulation 1661/85 led to the inclusion of Greenland and its citizens.

4.7.4 All of this also meant that EU citizens also benefited from wider geographical scope. EEA countries and Greenland were put on the same footing as EU countries. In the spirit of equal treatment of EU nationals and third country nationals in social matters, this state of affairs should be preserved. Appropriate changes to these regulations are also needed if this extension of scope is also to apply to Regulation 883/2004.

4.8 With this in mind, the EESC calls for all the relevant regulations and treaties that relate to Regulation 1408/71 to be amended as soon as possible, and certainly by the start date of the new coordination arrangements. It should then be possible to apply Regulation 883/2004 in the same wider geographical area and to the same wider group of people. Otherwise, the affected third-country nationals and citizens of the EEA, Switzerland and Greenland would not come under its protection. It is also possible that EU citizens would be put at a disadvantage in certain cross-border matters involving these countries. Regulation 1408/71 would continue to apply to such cases.

4.8.1 The Commission is urged to take the necessary steps as soon as possible. Firstly, there is unequal treatment of different citizens resident in the European Union. Secondly, having to apply two such complex regulations simultaneously would also be a disproportionate burden on social security institutions in the Member States.

4.8.2 It should also be pointed out that if Regulation 1408/71 and its implementing regulation 574/72 are to continue to apply, even if only to a small group of beneficiaries, they will need constant renewing and adapting to changes. This would be an unacceptable burden for the administration of the European Union and for all users of the regulations.

4.9 Regulation 883/2004 also provides for better procedures for faster and more reliable exchange of data between social security institutions in the Member States. In particular, this is to involve the promotion of electronic data exchange and working with electronic documents.

4.9.1 Whilst procedures involving paper documents have hitherto been the norm, and electronic processing only happened by mutual agreement between two Member States, the electronic exchange of all data between institutions is now to be the rule.

4.9.2 As well as savings in administrative costs, this is expected to have advantages in terms of faster procedures for insured persons, shorter response and processing times, and faster reimbursement or payment of benefits in cross-border cases.

4.9.3 The proposed regulation stops a long way short of saying that every institution must communicate electronically with every institution in the EU. Instead, a minimum of one access point in one institution per Member State, which is equipped to receive and send electronic social security data and forwards the data to the competent national institution, is sufficient. However, Article 83 of the draft states that, for the purposes of identifying the communication partner, a public database must be created. This includes the ‘competent authorities’, ‘competent institutions’, ‘institutions of the place of residence’, ‘institutions of the place of stay’, ‘access point’ and ‘liaison body’ as defined. This access makes it possible to replace previous annexes to the regulation with lists of institutions updated as appropriate.

4.9.4 In this context, the EESC calls for lessons to be learnt from experience with the implementation of the European health insurance card, inter alia as regards the ongoing shortcomings in its practical use in individual Member States. In particular, the extent to which it would be possible to use health insurance institutions' existing databases should be looked into. It will be up to the Administrative Commission to identify the data that are essential for communication. In addition, Member States should be encouraged to take appropriate steps so that European citizens can make full use of the advantages of the new arrangements, especially in the area of health insurance.

4.10 The EESC recognises that electronic data transfer enables processing to be speeded up, which is in the interests of insured persons. To that extent, this change is welcome. At the same time, however, the EESC is concerned that this involves sensitive personal data (relating to such matters as health, incapacity and unemployment). It is therefore essential to ensure that these data are properly secure and cannot fall into the wrong hands.

4.10.1 All of the guarantees provided for in the Community provisions on the protection of natural persons with regard to the processing and free movement of personal data also apply here. These were regulated by Article 84 of Regulation 1408/71 and are set out in Article 77 of Regulation 883/2004. Nonetheless, in particular in the light of electronic data transfer between institutions in Member States becoming the rule, the EESC calls for the implementing regulation to make explicit reference to the sensitivity of the data and to provide for appropriate mechanisms to ensure their security.

4.10.2 At all events, the EESC regrets the absence of a form of words similar to that in Article 84(5)b of Regulation 1408/71, which strictly forbids the use of these data for purposes other than social security. Such a provision should be explicitly included in Article 4 of the implementing regulation.

4.11 The advantages of using electronic means for the exchange of data between social security institutions should not, however, be exaggerated. There is no doubt that data will be transferred more quickly. In many cases, national institutions also need to be restructured.

4.11.1 It is questionable, however, as to whether faster transfer times will really bring about significant benefits to insured persons. As a rule, the time taken for data transfer is relatively short in comparison to the total time taken to process a file. Due to the complexity of the matters involved (take pensions for example: contribution paid in more than one country, pro rata calculations, etc.), some cases will still require special processing and cannot be dealt with by computer programmes without disproportionate cost or indeed at all. In such cases the files will still need to be dealt with by officials.

4.11.2 Consequently, the EESC does not believe that speeding up the transfer of data and facts will in itself bring about a breakthrough. The desired efficiency in processing times will only be achieved if the institutions in the Member States have sufficient and properly qualified staff with appropriate technical resources.

4.11.3 The EESC therefore calls on the Member States to begin immediately preparing staff in social security institutions for the new arrangements in the basic regulation and the implementing regulation. Appropriate staff training is indispensable. The EESC calls on the Commission to take appropriate initiatives within its competence to support the Member States in carrying this out. In particular, it calls for Community resources to be made available for training programmes and, where appropriate, assistance with training to be provided.

4.12 Because the social security schemes covered by Regulation 883/2004 are based on solidarity between all insured persons, provision should be made for mechanisms to ensure more effective recovery of claims relating to benefits not due or contributions not paid by the insured person or the contributions payer.

4.12.1 The EESC agrees with the Commission that more binding procedures to reduce the time needed for payment of these claims between Member States' institutions are essential in order to maintain confidence in the exchanges.

4.12.2 For example, the implementing regulation provides for setting common deadlines for fulfilling certain obligations or completing certain administrative tasks, which are intended to help clarify and structure relations between insured persons and institutions.

4.12.3 Furthermore, procedures for mutual assistance between institutions, based on Council Directive 76/308/EEC on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures, are planned. In addition, interest on contributions owed is to be introduced, which is expected to improve payment practice.

4.12.4 The EESC expressly welcomes all of these measures set out in the implementing regulation that are intended to offer more legal certainly and transparency to all those involved in implementing the new coordinating regulation. In the past, there have been instances between Member States where debts arising between institutions were not paid even after several years. The EESC hopes that payment practice between states will be significantly improved, although shortcomings in enforcing the collection of outstanding debts still remain.

4.13 The EESC also welcomes the greater flexibility of the new implementing regulation when compared to Regulation 574/72, which fixed the procedure for implementing 1408/71. This will continue to allow Member States to implement somewhat better at bilateral level than is required in the implementing regulation, provided that doing so is not detrimental to the interests of beneficiaries and to coordination. However, on the basis of this principle, according to which this flexibility should not be detrimental to beneficiaries, the EESC advocates a stronger form of words in Article 9 than the current one, which states that ‘these procedures [must] not adversely affect the rights of beneficiaries’. In particular, it should be explicitly stated that other forms of implementation must not lead to longer deadlines or additional administrative procedures.

4.14 The EESC calls on the Commission and the Member States to strengthen measures to ensure that all users of the regulation are better informed about the rules and benefits of coordinating social security systems, including the changes brought about by the applicability of 883/2004. The information should be sent to businesses and all insured persons, in particular to those active in a wide variety of forms of employment, from employees to the informal sector. The necessary preparations for this should, in the Committee's view, be started immediately.

4.15 Regulation 883/2004 provides that procedures must reflect the need for a balanced sharing of costs between Member States. However, the EESC wonders in this context whether the provisions in the regulation and the implementing regulation might give rise to a process whereby the EU's generous social security systems were weakened and benefits gradually eroded. In particular, with regard to the inclusion of economically non-active persons within the scope of the regulation and to the free movement of persons within the EU, the EESC insists that coordination should not lead to any levelling down or dismantling of social standards.

4.15.1 In this connection, the EESC believes that steps must be taken to produce comparable and meaningful data documenting the current and expected future cross-border drawing of health and social security benefits in the EU. Changes resulting from Regulation 883/2004 are particularly relevant.

5. Further specific comments on individual articles

5.1 Article 2: Rules for exchanges between institutions

The EESC calls for clear deadlines to be set for responses and processing. If these deadlines are not met, insured persons must receive compensation for any damages they suffer. The rights of insured persons must be enforceable. Appropriate legal instruments should be created. Any detriment that may arise must not be suffered by insured persons. Compensation must be paid by the institution in whose sphere of responsibility the damage occurred. Such a provision should be inserted into Article 2 of the implementing regulation.

5.2 Article 3: Scope and rules for exchanges of data between beneficiaries and institutions

Article 3.4: For the purposes of speeding up procedures, incentives should be given to ensure that both documents and, in particular, acknowledgements of receipt are sent electronically. Paper documents should be sent only in exceptional cases.

5.3 Article 4: Format and method of exchanging data

With regard to electronic information, in addition to the data protection mentioned in point 3.10.2, it should also be ensured that electronic communication with insured persons only takes place with the latter's consent. With regard to pensions in particular, many of the people concerned have led their entire lives without electronic communication. They cannot be forced to start now. Moreover, many have no access to electronic media. Other groups for whom access to computers is limited or difficult (such as people with disabilities) should also be given due consideration. Steps should be taken to promote public access to the appropriate technologies and to make such access as universal as possible.

With this in mind, the EESC calls for the following wording to be added to Article 4.2: ‘All measures and arrangements for electronic data exchange must meet the requirements of universal accessibility’. The EESC also has difficulty with the wording in Article 4(3), which states that in their communications with beneficiaries, the competent institutions shall favour the use of electronic means. The EESC calls for the words ‘provided that the beneficiaries express their agreement’ to be added to this clause.

5.4 Article 5: Legal value of documents and supporting documents issued in another Member State

Article 5(2): This states that the institution of a Member State may contact the institution of another Member State that issued a document in order to ask it for clarification of that document. If, as set out in Article 5(1), the document was issued by a tax authority, should the social security institution of one country contact another country's tax authority in order to receive clarification? This appears impracticable and burdensome.

What are the liaison bodies for? The EESC suggests that the information and assistance powers of the liaison bodies be strengthened so that they can perform the appropriate task. The institutions then need only contact the liaison body to get answers to their questions.

Article 5(3):The fact that the administration commission has six months to adjudicate between two or more institutions from two or more countries does not appear to constitute a simplification or an improvement of coordination between social security systems. This time frame is excessive. The EESC calls for the maximum time for the processing of an application, including all communication between institutions, to be set at three months altogether.

5.5 Article 8: Administrative arrangements between two or more Member States

This authorises Member States to conclude arrangements between themselves, provided that these arrangements do not adversely affect the rights of beneficiaries. For the purposes of transparency and legal certainty for those affected, the EESC calls for the Commission to be informed and sent a copy of all such agreements. A list of these agreements in an annex to the implementing regulation would create greater legal certainty.

5.6 Article 11: Elements for determining residence

Article 11(1)a)-e) set out objectively determinable facts for determining residency, with the person's intention considered to be an equally decisive criterion. The EESC believes that residency should be established first and foremost by objectively determinable facts. Only if this is not possible should reference be made to the intention expressed by the person concerned, i.e. as a secondary criteria as set out in point 2.

Moreover, the EESC has its doubts as to whether enquiries into individual reasons for changing place of residence might constitute unlawful prying into citizens' private lives.

5.7 Article 12: Aggregation of periods

Article 12(3) states that where a period of compulsory insurance coincides with a period of insurance completed on the basis of voluntary insurance in another Member State, only the period completed on the basis of compulsory insurance shall be taken into account. The EESC takes the view that this must not in any circumstances lead to any voluntary contributions paid becoming worthless. In such cases, the implementing provision should provide that the full value of the contributions paid is refunded to the insured person.

5.8 Article 16: Procedure for the application of Article 12 of Regulation 883/2004

This requires employers who post workers to another Member State to inform the competent institution of the posting, ‘where feasible’ in advance. The EESC calls for the words ‘where feasible’ to be deleted, as they leave too much room for interpretation.

It should be ensured that the competent institution is informed in advance as a rule, the aim being to create legal certainty for insured persons posted abroad and to avoid problems that they may face if an insured event takes place during their posting and if the institution of the Member State to which the worker is posted is not informed.

5.9 Article 21: Obligations of the employer

Article 21 makes it possible for the obligations to pay contributions to be fulfilled by the employee if the employer does not have an establishment in the Member State whose legislation is applicable to the employee. The employer must agree this with the employee.

The EESC considers it important that, whatever happens, the responsibility remains with the employer. Thus, this possibility of transferring the obligation to pay contributions must not lead to employees being burdened with employer's contributions, thus reducing their net remuneration. The employee must receive full compensation from the employer for any employer contributions he pays.

The EESC calls for a requirement for the agreement mentioned in Article 21(2) to be made in writing in order to avoid any legal uncertainty. The employer's obligation to inform the competent institution of this agreement should, in the EESC's view, be worded more strongly. The information should be sent immediately (within a short period to be fixed) and in writing.

5.10 Article 25: Stay in a Member State other than the competent Member State

For the purposes of a stay in a Member State other than the competent Member State, Article 25 (A)(1) calls for a document to be issued proving the entitlement to benefits in kind. The EESC believes that it should be made clear that the European health insurance card fulfils these requirements and that no additional certification is required. If another form of proof should be introduced in the future, there is nothing to stop this article being amended.

It is unclear whether, under Article 25(B), the insured person is entitled to choose whether to apply for reimbursement from the institution in the place of stay or from the competent institution.

5.11 Article 26: Scheduled treatment

The EESC takes the view that the wording of Article 26 (B), ‘Meeting the cost of benefits in kind as part of scheduled treatment’ is open to misinterpretation and should be clarified. In line with the Commission's intention, the EESC suggests the following beginning to the paragraph: ‘When an authorisation is granted and the insured person has met the cost of treatment him or herself, the competent institution shall meet the costs of the expenses at the highest rate and shall pay this sum to the insured person…’.

Otherwise, one could infer that the competent institution reimburses the implementing institution and that the insured person could then claim any difference that may remain. This is not the intention as regards meeting the costs of scheduled treatment.

5.12 Article 88: Amendment of the Annexes

As already stated in point 4.5, the currently empty Annex XI, which is to set out certain procedures for the application of certain national legislation, is being dealt with and discussed alongside the draft implementing regulation in the Council. In it, the Member States try to uphold certain national provisions. Annex XI is a sensitive part of Regulation 883/2004, as it may contain quite a number of entries.

The EESC calls for any entries in this annex to be limited to what is strictly necessary. It will issue a separate opinion on this matter.

5.13 Article 91: Final provisions

In view of the public significance of rapid implementation of the implementing regulation, the EESC — as already stated in point 4.4 — calls on the Member States to set a clear deadline by which the negotiations in the Council on the implementing regulation must be completed. In the case of the European health insurance card, such a politically agreed deadline proved useful and attainable. Basic regulation 883/2004 must enter into force as quickly as possible.

Brussels, 26 October 2006. The President of the European Economic and Social Committee Dimitrios DIMITRIADIS

(1) EESC opinion on Social security schemes for employed and self-employed persons (rapporteur: Mr Rodríguez García-Caro), OJ C 24, 31.1.2006.

(2) Training and Reporting on European Social Security (see also: http://www.tress-network.org/).

(3) See also opinion on Amendment Regulation 1408/71 (SOC/213, CESE 920/2006, rapporteur Mr Rodríguez García Caro, point 5).