Proposal for a Council Regulation amending, for the benefit of unemployed persons, Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to the members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (96/C 68/08) (Text with EEA relevance) COM(95) 734 final - 96/0004(CNS)

(Submitted by the Commission on 12 January 1996)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 51 and 235 thereof,

Having regard to the proposal from the Commission, presented following consultation with the Administrative Commission on Social Security for Migrant Workers,

Having regard to the opinion of the European Parliament,

Having regard to the opinion of the Economic and Social Committee,

Whereas account should be taken of the fact that possibilities of finding work within a reasonable period of time have been considerably reduced; whereas it is therefore necessary to provide for the retention beyond the current three-month period of the right to unemployment benefits when an unemployed person goes to another Member State to look for work;

Whereas, however, in order to prevent abuse, it should be provided that after an initial period of three months the total duration of the grant of benefits or the amount may not exceed the period or amount provided for, not only by the legislation of the competent State but also by that of the Member State in whose territory the unemployed person is looking for work;

Whereas, for the same reasons, it should be provided that the amount of cash sickness benefit may, after an initial period of three months, not exceed the amount of equivalent benefits provided for by the legislation of the Member State in which the person concerned is looking for work;

Whereas, for the sake of efficiency, the legislation applicable in respect of checks and sanctions ought to be that of the Member State in which the unemployed person is looking for work;

Whereas it is necessary to specify that it is the institution of the Member State under whose legislation the unemployed person is entitled to unemployment benefits that is obliged to refund the amount of these benefits to the institution of the Member State providing these benefits;

Whereas wholly unemployed frontier workers should be offered the choice of making themselves available to the employment services of both the Member State in whose territory they last worked and the Member State in whose territory they reside, in order to enhance their chances of finding work;

Whereas it is necessary to amend certain provisions of Regulation (EEC) No 574/72 following the proposed amendments to be made to Regulation (EEC) No 1408/71;

Whereas in order to attain the objective of the free movement of workers in the domain of social security, it is necessary and appropriate for an amendment of the rules on the coordination of national social security schemes to be made through a Community legal instrument that is binding and directly applicable in each Member State;

Whereas this is in conformity with the provisions of the third paragraph of Article 3B of the Treaty,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 1408/71 is amended as follows:

1. The text of Article 25 (1) and (2) is replaced by the following:

'Article 25

1. An unemployed person who was formerly employed or self-employed, to whom the provisions of Articles 69 to 69c or the second sentence of Article 71 (1) (c), apply and who satisfies the conditions of the legislation of the competent State for entitlement to benefits in kind and in cash, taking account, where appropriate, of the provisions of Article 18, shall during the period determined in accordance with Article 69b (2) and (3) receive:

(a) benefits in kind provided on behalf of the competent institution by the institution of the Member State in which he seeks employment in accordance with the provisions of the legislation which the latter institution administers, as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution of the Member State in which the unemployed person seeks employment, benefits may be provided by the latter institution on behalf of the former institution in accordance with the provisions of the legislation of the competent State. Upon the expiry of the period provided for in Article 69b (2), the amount of the cash benefits may not exceed the amount of benefits to which he would have been entitled if during his last employment he had been subject to the legislation of the Member State in which he is seeking employment. The second sentence of Article 69b (3) (b) shall apply by analogy. Unemployment benefits under Articles 69 to 69c shall not be granted for the period during which cash benefits are received.

2. A wholly unemployed person who was formerly employed and to whom the first sentence of Article 71 (1) (c) applies shall receive benefits in kind and in cash in accordance with the provisions of the legislation of the Member State in whose territory he resides, as though he had been subject to that legislation during his last employment, account being taken where appropriate of the provisions of Article 18; the cost of such benefits shall be met by the institution of the country of residence.`

2. The first subparagraph of Article 39 (6) is replaced by the following:

'6. A wholly unemployed person who was formerly employed to whom the first sentence of Article 71 (1) (c) applies shall receive the invalidity benefits provided by the competent institution of the Member State in whose territory he resides, in accordance with the legislation which it administers, as though he had been subject to that legislation during his last employment, account being taken where appropriate of Article 38 and/or Article 25 (2). The institution of the country of residence shall be responsible for paying these benefits.`

3. The first subparagraph of Article 45 (6) is replaced by the following:

'6. A period of full unemployment during which the person concerned receives benefits in accordance with the first sentence of Article 71 (1) (c) shall be taken into account by the competent institution of the Member State in whose territory he resides in accordance with the legislation administered by that institution, as if he had been subject to that legislation during his last employment.`

4. Article 47 (4) is replaced by the following:

'4. If the legislation which the competent institution of a Member State administers requires a wage or salary to be taken into account for the calculation of benefits, where the first and second subparagraphs of Article 45 (6) have been applied, and if, in this Member State, only periods of full unemployment for which benefits are paid in accordance with the first sentence of Article 71 (1) (c) are taken into consideration for the payment of pensions, the competent institution of that Member State shall pay the pension on the basis of the wage or salary it used as the reference for providing that unemployment benefit in accordance with the legislation which it administers.`

5. Article 67 (3) is replaced by the following:

'3. Except in the cases referred to in Article 71 (1) (c), application of the provisions of paragraphs 1 and 2 shall be subject to the condition that the person concerned should have completed lastly:

- in the case of paragraph 1, periods of insurance,

- in the case of paragraph 2, periods of employment,

in accordance with the provisions of the legislation under which the benefits are claimed.`

6. The text of Article 69 is replaced by the following:

'Article 69

A wholly unemployed person who was formerly employed or self-employed and who satisfies the conditions of the legislation of a Member State for entitlement to benefits, account being taken where appropriate of the provisions of Article 67, and who goes to one or more other Member States in order to seek employment there shall retain his entitlement to such benefits under the conditions laid down in Article 69a and within the limits determined by Article 69b.`

7. After Article 69, the following Articles 69a, 69b and 69c are inserted:

'Article 69a

Conditions for the retention of the right to benefits

1. The unemployed person must, after the commencement of unemployment and before his departure, have been registered as a person seeking work with the employment services of the competent State and have remained at its disposal for at least four weeks since becoming unemployed. However, the competent services or institutions may authorize his departure before such time has expired.

2. The unemployed person must register as a person seeking work with the employment services of each of the Member States to which he goes and be subject to the control procedure authorized there, meet the conditions in accordance with the legislation of that State and effectively remain available to the employment services. This condition shall be considered satisfied for the period before registration if the person concerned registered within seven days of the date when he ceased to be available to the employment services of the State he has left. In exceptional cases, this period may be extended by the competent services or institutions.

Article 69b

Limits to the retention of the right to benefits

1. The rate and duration of benefit to which the unemployed person continues to be entitled shall be determined in accordance with the legislation of the competent State; the provisions of this section can under no circumstances give rise to benefits of a higher rate or for a longer period than that provided for by the legislation of the competent State. The period during which the unemployed person received benefits under the legislation of that State before going to one or more other Member States shall be deducted from the period during which entitlement is maintained.

2. Entitlement to benefits shall initially continue for up to three months from the date when the person concerned ceased to be available to the employment services of the State he has left.

3. Moreover, upon expiry of the period provided for in paragraph 2, the following provisions shall apply:

(a) The total duration of benefit under the legislation of the competent State may not exceed the period during which the unemployed person would have been entitled to benefits if during his last employment he had been subject to the legislation of the Member State to which he has gone in search of work.

(b) The amount of benefits to which the unemployed person continues to be entitled under the legislation of the competent State may not exceed the amount of benefits to which he would have been entitled if during his last employment he had been subject to the legislation of the Member State to which he has gone in search of work. If under the legislation of the latter Member State benefits must be calculated on the basis of the amount of the previous wage or salary, the institution of that State shall calculate the amount to which the unemployed person would have been entitled on the basis of the wage or salary corresponding, in the place where the unemployed person has gone in search of work, to equivalent or similar employment to his last employment in the territory of another Member State.

4. In the case of a seasonal worker such duration shall, moreover, be limited to the period remaining until the end of the season for which he was engaged.

5. An unemployed person returning to the competent State shall continue to be entitled to benefits in accordance with the legislation of that State; the period during which the unemployed person received benefits in one or more Member States other than the competent State shall be deducted from the period during which he continues to be entitled under the legislation of the competent State.

6. The provisions of Articles 69 to 69b may be invoked only once between two periods of employment.

7. Where the competent State is Belgium, an unemployed person who returns there after having invoked the provisions of Articles 69 to 69b shall not requalify for benefits in that country until he has been employed there for at least three months.

Article 69c

Modification of the right to benefits

The right to benefits under the provisions of Articles 69 to 69b shall be reduced, modified, suspended, withdrawn or confiscated if facts relating to the unemployed person emerge such that, under the legislation of the State in which he is looking for work, entail the reduction, modification, suspension, withdrawal or confiscation of the right to unemployment benefits. The institution of the Member State in which the unemployed person is looking for work shall decide on the application of the provisions of this Article.`

8. The first paragraph of Article 70 is replaced by the following:

'1. In the cases referred to in Article 69, benefits shall be provided by the institution of each of the States to which an unemployed person goes to seek employment.

The competent institution of the Member State under whose legislation the unemployed person is entitled to benefits shall be obliged to reimburse the amount of such benefits.`

9. The text of Article 71 is replaced by the following:

'Article 71

1. An unemployed person who was formerly employed and who during his last employment resided in the territory of a Member State other than the competent State shall receive benefits in accordance with the following provisions:

(a) An employed person who has become unemployed but not wholly unemployed in the undertaking employing him shall receive benefits in accordance with the legislation of the competent State as if he resided in the territory of that State; these benefits shall be provided by the competent institution.

(b) An employed person who has become wholly unemployed and who makes himself available to the employment services in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of the competent State as if he resided in the territory of that State; these benefits shall be provided by the competent institution. If the competent State is Luxembourg, the institution of the place of residence shall, for a transitional period of 10 years after the entry into force of this paragraph, refund to the institution of that State half the amount of the benefits provided to the frontier worker within the meaning of Article 1 (b), within the limit of the amount to which the unemployed person would have been entitled if he had made himself available to the employment services of the State of residence.

If subsequently the unemployed person makes himself available to the employment services in the territory of the State where he resides, he shall receive benefits in accordance with the provisions of the legislation of that State. However, the period during which he received benefits in the competent State shall be deducted from the period during which he continues to be entitled to benefits in accordance with the legislation of the State where he resides.

(c) An employed person who has become wholly unemployed and who makes himself available to the employment services of the Member State in whose territory he resides or who returns to the territory of that State shall receive benefits in accordance with the legislation of that State as though he had last been employed there; these benefits shall be provided by the institution of the place of residence at its own expense.

If subsequently the unemployed person makes himself available to the employment services in the territory of the competent State, he shall receive benefits in accordance with the provisions of the legislation of that State. However, the period during which he received benefits in the State where he resides shall be deducted from the period during which he continues to be entitled to benefits under the legislation of the competent State.

(d) An unemployed person may not claim benefits under the legislation of the Member State in whose territory he resides while he is entitled to benefits under the provisions of paragraphs (a) or (b).

2. For the purpose of the first paragraph, "wholly unemployed" refers to the position of a formerly employed person whose employment relationship has been broken off or has expired.`

10. The text of Article 72a is replaced by the following:

'Article 72a

Employed persons who have become wholly unemployed

An employed person who has become wholly unemployed and to whom the first sentence of Article 71 (1) (c) applies shall, for the members of this family residing in the territory of the same Member State as he, receive family benefits in accordance with the legislation of that State, as if he had been subject to that legislation during his last employment, taking account where appropriate of the provisions of Article 72. These benefits shall be provided by, and at the expense of, the institution of the place of residence.`

Article 2

Regulation (EEC) No 574/72 is amended as follows:

1. Article 26 is amended as follows: the text of paragraphs 1 and 2 is replaced by the following:

'1. In order to receive benefits in cash and in kind under Article 25 (1) of the Regulation for himself and for the members of his family, an unemployed person shall submit to the sickness insurance institution of the place where he has gone, a certified statement for which, prior to his departure, he should have applied to the competent sickness insurance institution. If the unemployed person does not submit the said certified statement, the institution of the place to which he has gone shall obtain it from the competent institution.

This certified statement must testify the existence of the right to the said benefits under the conditions set out in Article 69a (1) of the Regulation; indicate the duration of such right, taking into account the provisions of Article 69b of the Regulation; and specify the amount of cash benefits to be provided, where appropriate, by way of sickness insurance during the abovementioned period, in the case of incapacity for work or hospitalization.

The unemployment insurance institution of the place where the unemployed person has gone shall inform the competent institution, in particular, of the limits for the grant of cash benefits, these limits being fixed in accordance with the provisions of Article 25 (1) (b) of the Regulation.

2. The unemployment insurance institution of the place where the unemployed person has gone shall testify on a copy of the certified statement referred to in Article 83 of the implementing Regulation which shall be sent to the sickness insurance institution of that same place, that the conditions laid down in Article 69a (2) of the Regulation have been fulfilled and shall specify the date from which the unemployed person shall receive unemployment insurance benefits at the expense of the competent institution.

This certified statement shall be valid for the period laid down in Article 69b of the Regulation, for as long as the conditions are fulfilled. The unemployment insurance institution of the place where the unemployed person has gone shall, within three days, inform the said sickness insurance institution if the conditions are no longer satisfied.`

2. The title above Article 83 and the first paragraph of Article 83 are replaced by the following:

'Application of Articles 69 to 69c

Article 83

Conditions and limits for the retention of the right to benefits when an unemployed person goes to another Member State

1. In order to retain the right to benefits, an unemployed person covered by Article 69 of the Regulation shall submit to the institution of the place to which he has gone, in addition to the certified statement referred to in Article 80 of the implementing Regulation, a certified statement in which the competent institution shall certify that he is still entitled to benefits under the conditions laid down in Article 69a (2) of the Regulation. The competent institution shall specify in particular in this certified statement:

(a) the amount of benefits to which the unemployed person is entitled under the legislation of the competent State;

(b) the date on which the unemployed person ceased to be available to the employment services of the competent State;

(c) the time limit under Article 69a (2) for registration as a person seeking employment in the Member State to which the unemployed person has gone;

(d) the maximum period of entitlement and the maximum amount of benefit in accordance with Article 69b (1);

(e) the period during which the unemployed person received benefits under the legislation of the competent State before going to another Member State.

The competent institution shall, where appropriate, inform the institution of the place where the unemployed person has gone of any changes occurring in the information indicated on the abovementioned certified statement.`

3. Article 83 (3) is replaced by the following:

'3. The institution of the place to which the unemployed person has gone shall notify the competent institution of the date on which the unemployed person registered, the date on which payment of benefits commenced and the limits for the grant of benefits, these limits having been fixed in accordance with the provisions of Article 69b (3) (a) and (b) of the Regulation. The institution of the place to which the unemployed person has gone shall pay the benefits, the amount and benefit period of which have been fixed under the aforementioned provisions and Article 69b (1) in accordance with the procedure provided for by the legislation of the Member State to which the unemployed person has gone.

The institution of the place to which the unemployed person has gone shall carry out checks, or arrange for checks to be carried out, as if it were dealing with an unemployed person receiving benefits under the legislation which it administers. It shall forthwith inform the institution of the competent Member State of any decisions taken pursuant to Article 69c and shall indicate to what extent the right to benefits has been reduced, modified, suspended withdrawn or confiscated.`

Article 3

This Regulation shall enter into force on the first day of the month following that of its publication in the Official Journal of the European Communities.

This Regulation shall be binding in its entirety and directly applicable in all Member States.