Proposal for a EUROPEAN PARLIAMENT AND COUNCIL REGULATION amending, for the benefit of European parliamentary assistants, Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community, and Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71

(presented by the Commission)

EXPLANATORY MEMORANDUM

I. General comment

Under Article 14 of the set of rules governing the payment of expenses and allowances to Members of the European Parliament (MEPs), adopted by its Bureau, MEPs are entitled to an allowance to cover the expenses arising in particular from their employing one or more assistants, and several MEPs may jointly employ the same assistant within the limits of the secretarial assistance allowance as set by the Bureau and contained in 'Section 1 - European Parliament' of the General Budget of the European Union.

It is up to each MEP to decide on the number of assistants they wish to have and the amount of their assistants' remuneration in the light of the qualifications demanded of them. The statutory arrangements regarding assistants' employment conditions, social security and taxation are governed by Member States' national law and, where appropriate, Community law.

In order to harmonise assistants' recruitment and employment conditions, the Commission had proposed amending the Conditions of Employment of Other Servants of the European Communities by having European parliamentary assistants included as 'auxiliary staff' [1].

[1] COM(1998) 312 of 18 May 1998, OJ C 179, 11.6.1998.

However, this proposal encountered opposition within the Council, which found itself unable to adopt the Commission's proposal.

Subsequently, the European Parliament decided to clarify certain aspects of the assistants' status within the framework of the abovementioned internal rules. Those rules were amended on 6 July 2000, introducing in particular the obligation to lodge a copy of the contract concluded between MEPs and their assistant(s) plus - where an employment contract is involved - a certificate attesting membership of a national social security scheme and insurance cover against industrial accidents.

However, this does not affect the statutory arrangements governing assistants' employment conditions, social security and taxation. Such matters continue to be governed by national law and, where appropriate, the relevant Community law applicable.

A number of problems related to social security have been noted in connection with application of Regulation (EEC) No 1408/71 [2] and Regulation (EEC) No 574/72 [3] to European parliamentary assistants. These regulations coordinate Member States' social security schemes so as to avoid certain disadvantages - due to differences between Member States' schemes - which might occur when a person moves within the Community. This coordination determines, in particular, the Member State whose social security legislation is applicable. Thus, employed persons are, in principle, subject to the social security legislation of the Member State in whose territory they pursue their professional activity - Article 13(2)(a). Special rules apply when a worker normally performs work as an employed person in the territory of two or more Member States - Article 14(2). In this instance, the employed person will be subject to the legislation of the Member State in which he resides if he pursues part of his activity in its territory.

[2] Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community (OJ L 149, 5.7.1971, p. 2), as updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997, p. 1) and last amended by Regulation (EC) No 1399/1999 (OJ L 164, 30.6.1999, p. 1).

[3] Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ L 74, 27.3.1972, p. 1), as updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997, p. 1) and last amended by Commission Regulation (EC) No 89/2001 (OJ L 14, 18.1.2001, p. 16).

Determination of the social security legislation applicable to European parliamentary assistants has - on account of their specific activity for their employers (Members of the European Parliament) and the wide range of different situations - given rise to certain difficulties, which are a source of legal uncertainty. This is because such people, many of whom occupy their posts for a limited period only, often pursue such activities in the territory of more than one Member State, in particular in Member States in which the European Parliament's seat and working places are situated, and also often in the Member State from which the MEP hails. Furthermore, it is sometimes difficult to exactly determine European parliamentary assistants' State of residence.

In order to make for more legal certainty in this field, and to determine more easily and beyond doubt the legislation applicable to this particular type of worker employed by MEPs to assist them in the performance of their elective office, it seemed appropriate to amend Regulation (EEC) No 1408/71. Such an amendment will allow European parliamentary assistants to exercise, as is the case for the Community institutions' auxiliary staff, a right of option on the social security system to be applicable to them.

Introducing this right of option is also justified by the fact that European parliamentary assistants are employed on the basis of the Union budget to assist members of a Community institution.

II. Comments on the articles

Article 1

Amendments to Regulation (EEC) No 1408/71

1. Inserting a definition of the term "European parliamentary assistant" into Article 1

In order to avoid any discussion about who is entitled to the right of option offered to European parliamentary assistants, this category of worker needs to be defined in clear-cut terms.

The proposed definition refers to Article 14 of the European Parliament's set of internal rules on payment of Members' expenses and allowances, as amended on 6 July 2000, which allows one or more Members of the European Parliament to employ one or more people to work for them as assistants during their term of office. Under Article 14 and the definition proposed, the MEPs involved are deemed to be the employer of the said worker(s).

The definition adopted covers employed persons only and not service providers to whom Members of the European Parliament may also turn. This is because it is felt that the activity of such service providers is generally occasional in nature, which does not justify them being covered by special rules in determining the social security legislation applicable. It should be emphasised that providers of services for one or more European Parliament Members are usually likely to be rendering services to other clients. For these reasons, it is not appropriate to offer service providers a right of option which would tend to cover not only the activities undertaken for MEPs but also all the services which such service provider render to other clients.

2. Amendments to Article 16

Firstly, it is proposed to expand the title of Article 16 to include a reference to European parliamentary assistants. It is then proposed to add a paragraph 4 to the article, giving European parliamentary assistants the right to opt for one of the following:

- the legislation applicable pursuant to Article 13(2)(a), i.e. the legislation of the Member State in whose territory they pursue their activity as an employed person or, where appropriate, the legislation applicable pursuant to Article 14(2)(b) if they normally pursue their activity in the territory of two or more Member States;

- the legislation of the Member State to which they were last subject;

- the legislation of the Member State of which they are nationals.

The reference to Article 14(2)(b) is new as compared to the existing right of option enjoyed by auxiliary staff. This reference is justified by the fact that many assistants habitually pursue their activities in the territory of two or more Member States. In such cases, under Article 14(2)(b) the legislation applicable is either (a) the legislation of the Member State in whose territory the person involved resides, if they pursue their activity partly in that territory or if they have several employers who have their registered offices in the territory of different Member States, or (b) the legislation of the Member State in whose territory the registered office of the person employing them is situated, if the person involved does not reside in the territory of any of the Member States where they are pursuing their activity.

Then, in order to cover the rare possibility of European parliamentary assistants simultaneously pursuing other activities as employed person and/or activities as self-employed person in the territory of one or more Member States other than the Member State for whose legislation they have opted, it is proposed that for those other activities they likewise be subject to the legislation of the latter Member State. It is also provided that such assistants be treated, for the purposes of applying the legislation for which they have opted, as though they pursued all their professional activities in the territory of that Member State.

Contrary to the current provisions for auxiliary staff, the assistants' right of option, relates to all the social security branches covered by Regulation (EEC) No 1408/71, including family benefits, for which auxiliary staff have their own scheme.

The right of option, which can be exercised once only, takes effect when the activity as a European parliamentary assistant commences.

Article 2

Amendment of Regulation (EEC) No 574/72

It is proposed to supplement Article 14 of Regulation (EEC) No 574/72 by a reference to European parliamentary assistants and Members of the European Parliament. This article regulates the procedures involved in exercising the right of option. It is up to the MEPs concerned to notify the institution designated by the competent authority of the Member State for whose legislation the assistant has opted. Pursuant to Article 4(10)(b) of Regulation (EEC) No 574/72, the said institutions are listed in Annex 10 to that regulation.

The arrangement is for the institution concerned to give assistants a certificate testifying that they are subject to the legislation of the Member State in question. This institution must also send a copy of the certificate to the competent institution of any other Member State in whose territory the assistants pursue professional activities. If necessary, these latter institutions must supply the competent institution in the Member State whose legislation is applicable with the information necessary for establishing the contributions payable under that legislation.

The current Article 14(4), which contains a special implementation provision in cases where the legislation of the Federal Republic of Germany is opted for, will likewise be applicable to assistants.

Article 3

Transitional provisions

This Article contains transitional provisions allowing assistants already employed by one or more MEPs before the proposed amendments enter into force to exercise the right of option within three months of the date on which the Regulation enters into force.

III. Application in the countries of the european economic area

Freedom of movement for persons is one of the objectives and principles of the Agreement on the European Economic Area (EEA), which entered into force on 1 January 1994 [4]. In Chapter 1 of Part III on the free movement of persons, services and capital, Articles 28, 29 and 30 are devoted to the free movement of workers and self-employed persons. Article 29 more specifically reiterates the principles set out in Article 42 of the EC Treaty relating to social security for persons moving within the Community. Consequently, this proposal for a Regulation, if adopted, must be applied to the member countries of the EEA.

[4] OJ L 1, 3.1.1994, as amended by Decision of the EEA Joint Committee No 7/94 of 21.3.1994 (OJ L 160, 28.6.1994).

2001/0137 (COD)

Proposal for a EUROPEAN PARLIAMENT AND COUNCIL REGULATION amending, for the benefit of European parliamentary assistants, Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community, and Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,

Having regard to the proposal from the Commission [5],

[5] OJ C , , p. .

Acting in accordance with the procedure referred to in Article 251 of the Treaty [6],

[6] OJ C , , p. .

Whereas:

(1) Under Article 14 of the set of rules governing the payment of expenses and allowances to Members of the European Parliament (MEPs), adopted by its Bureau, MEPs are entitled to an allowance to cover the expenses arising from their employing one or more assistants, and several MEPs may jointly employ the same assistant within the limits of the secretarial assistance allowance as set by the Bureau and contained in 'Section 1 - European Parliament' of the General Budget of the European Union.

(2) The social security arrangements pertaining to European parliamentary assistants are governed by the national law of the competent Member States, within the meaning of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community [7], and Council Regulation (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, self-employed persons and to members of their families moving within the Community [8].

[7] OJ L 149, 5.7.1971, p. 2, as updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997, p. 1) and last amended by Regulation (EC) No 1399/1999 (OJ L 164, 30.6.1999, p. 1).

[8] OJ L 74, 27.3.1972, p. 1, as updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997, p. 1) and last amended by Commission Regulation (EC) No 89/2001 (OJ L 14, 18.1.2001, p. 16).

(3) Given the wide range of possible situations and the specific nature of the tasks of parliamentary assistants working for one or more Members of the European Parliament, determination of the social security legislation applicable to them pursuant to Regulation (EEC) No 1408/71 has created a lack of certainty and practical difficulties in arranging for their social cover. This situation is detrimental not only to such employed persons and their employers but also to Member States' social security bodies.

(4) In order to be able to identify more easily and beyond doubt the social security legislation of the Member State to which the European parliamentary assistants are subject, and in order to provide the latter with appropriate social cover, it seemed appropriate to introduce, for their benefit, a right of option regarding the social security legislation to be applicable to them. Given the exceptional nature of these rules, justified by the assistants' specific role in regard to Members of the European Parliament, this right of option should be limited to employed assistants alone.

(5) This right of option for this specific category of employed persons should now be incorporated into Regulation (EEC) No 1408/71 and its implementing regulation, and the logical extension of this right should be taken into account where European parliamentary assistants simultaneously pursue other professional activities as employed and/or self-employed persons. There is also a need to include transitional provisions within this Regulation relating to parliamentary assistants already in their post prior to the date on which this Regulation enters into force.

(6) This amendment of the rules governing coordination of national social security schemes under Regulation (EEC) No 1408/71 and its implementing regulation is intended to facilitate the free movement of assistants employed by Members of the European Parliament to assist them in the performance of their elective office within that Community institution,

HAVE ADOPTED THIS REGULATION:

Article 1 Amendment of Regulation (EEC)No 1408/71

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

1) In Article 1, the following point (w) is added:

"w) European parliamentary assistant means an employed person employed by one or more Members of the European Parliament to assist them in the performance of their elective office and during their term of office."

2) Article 16 is amended as follows:

a) The title is replaced by the following title:

"Special rules regarding persons employed by diplomatic missions and consular posts, auxiliary staff of the European Communities and European parliamentary assistants"

b) The following paragraph 4 is added:

"4. European parliamentary assistants may opt for one of the following:

- application of the legislation referred to either in Article 13(2)(a) or, where appropriate, Article 14(2)(b),

- application of the legislation of the Member State to which they were last subject,

- application of the legislation of the Member State of which they are nationals.

This right of option, which may be exercised once only, takes effect when they commence their activity as European parliamentary assistants.

European parliamentary assistants simultaneously pursuing other activities as employed person and/or activities as self-employed persons in the territory of one or more Member States other than the Member State for whose legislation they have opted, shall also be subject to the legislation of that latter Member State.

They shall be treated, for the purposes of applying the legislation for which they have opted, as though they pursued all their professional activities in the territory of that Member State."

Article 2 Amendment of Regulation (EEC)No 574/72

Article 14 of Regulation (EEC) 574/72 is replaced by the following text:

"Article 14

Exercise of right of option by auxiliary staff of the European Communities and European parliamentary assistants

1. The right of option provided for in Article 16(3) and (4) of the Regulation must be exercised at the time when the contract of employment is concluded. The authority empowered to conclude such contract in respect of auxiliary staff and the Member(s) of the European Parliament concerned in respect of parliamentary assistants shall inform the institution designated by the competent authority of the Member State for whose legislation the auxiliary staff member or the European parliamentary assistant has opted. The said institution shall, where necessary, forward such information to all other institutions of the same Member State.

2. The institution designated by the competent authority of the Member State for whose legislation the auxiliary staff member or the European parliamentary assistant has opted shall issue to him a certificate testifying that he is subject to the legislation of that Member State while he is employed by the European Communities as an auxiliary staff member or employed as a European parliamentary assistant.

Where a European parliamentary assistant simultaneously pursues his activities as an assistant in the territory of one or more Member States or simultaneously pursues other activities as an employed and/or self-employed person in the territory of one or more Member States other than the Member State for whose legislation he has opted, the institution designated by the competent authority of the Member State whose legislation is applicable shall forward a copy of the certificate, issued pursuant to the first subparagraph, to the institution designated by the competent authority of any other Member State in whose territory the assistant is pursuing professional activities. That latter institution or, where appropriate, those latter institutions shall, where necessary, notify the institution designated by the competent authority of the Member State whose legislation is applicable of the information necessary to determine the contributions which the employer(s) and/or the assistant are liable to pay pursuant to that legislation.

3. The competent authorities of the Member States shall, where necessary, designate the competent institutions in respect of the members of the auxiliary staff of the European Communities and of the European parliamentary assistants.

4. Where an auxiliary staff member or European parliamentary assistant, employed in the territory of a Member State other than Germany, has opted for German legislation to be applied, the provisions of that legislation shall be applied as though the auxiliary staff member or European parliamentary assistant were employed in the place where the German Government has its seat. The competent authority shall designate the competent sickness insurance institution."

Article 3 Transitional provisions

A European parliamentary assistant already employed by one or more Members of the European Parliament on the date this Regulation enters into force may exercise the right of option provided for in Article 16(4) of Regulation (EEC) No 1408/71 within a period of three months from the date this Regulation enters into force.

This option takes effect from the first day of the month following that in which the communication referred to in Article 14(1) of Regulation (EEC) No 574/72 is sent.

Article 4 Entry into force

This Regulation shall enter into force on 1 ...... [the first day of the second month following 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.

Done at Brussels,

For the European Parliament For the Council

The President The President