EN Official Journal of the European Union C 151/50

Opinion of the European Economic and Social Committee on the Proposal for a Council Regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality

COM(2007) 439 final — 2007-152 (CNS)

(2008/C 151/15)

On 5 October 2007, the Council decided to consult the European Economic and Social Committee, under Article 262 of the Treaty establishing the European Community, on the

Proposal for a Council Regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the Committee's work on the subject, adopted its opinion on 19 December 2007. The rapporteur was Mr Rodríguez García-Caro.

At its 441st plenary session, held on 16 and 17 January 2008 (meeting of 16 January), the European Economic and Social Committee adopted the following opinion unanimously.

1. Conclusions

1.1 The Committee welcomes the proposal for a Regulation extending the provisions of Regulation (EC) 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality, as it represents a step forward in ensuring equal treatment for EU citizens and third-country nationals residing legally in the EU.

1.2 The Committee therefore hopes that the following comments, summarising the points made later in this opinion, will be taken into account:

1.2.1 under no circumstances should Regulation 859/2003 and therefore Regulation 1408/71 and its implementing regulation be allowed to remain in force;

1.2.2 the text replacing Regulation 859/2003 should not contain an annex with special provisions permitting exclusions to the application of Regulation 883/2004;

1.2.3 the opinion of the European Economic and Social Committee, as the representative of organised civil society in the European Union, should always be required when such provisions are considered.

2. Introduction

2.1 In April 1991, the European Economic and Social Committee, in its own-initiative opinion on the Status of migrant workers from third countries (1), expressed its support for equal treatment in the social field between Community and third-country nationals.

2.2 In October 1999, the Tampere European Council stated that fair treatment should be given to third-country nationals residing legally in the Member States, and their rights and duties should be equivalent to those of EU citizens themselves. Logically, these rights include freedom of movement and the socio-occupational consequences thereof.

2.3 Article 63 of the Treaty Establishing the European Community states that the Council, after the Amsterdam Treaty enters into force, will adopt ‘measures defining the rights and conditions under which nationals of third countries who are legally resident in a Member State may reside in other Member States’ (2). These measures concern the right to residence and freedom of movement of these nationals.

2.4 May 2003 saw the publication of Regulation (EC) No 859/2003 (3) extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality (4). This built on the mandate set by Article 63 TEC and extended the provisions of the regulations on social security for third-country nationals, their family members and survivors of EU citizens who, as third-country nationals, are residing legally in the EU.

2.5 In 2004, Regulation 883/2004 on the coordination of social security systems was adopted, and it was established that Regulation 1408/71 would be repealed when the implementing regulation for the former text was adopted and published. If the proposed Regulation covered by this opinion were not adopted, then the third-country nationals residing legally in the EU would remain subject to the provisions of Regulation 1408/71 and would not benefit from the simplification and improvements brought by Regulation 883/2004; therefore, paradoxically, two regulations on social security would exist, one of which would apply only to third-country nationals.

3. Summary of the proposal

3.1 The proposed Regulation comprises three articles and may, like its predecessor, include an annex which does not form part of the current proposal. The text of the articles repeats almost literally that of the Regulation which is being replaced.

3.2 Article 1 sets out the scope of the Regulation, which, logically, applies to third-country nationals, members of their families and their survivors residing legally in a Member State and not already covered by Regulation 883/2004.

3.3 Article 2 sets out the same provisos as current Regulation 859/2003, referring to rights dating from before 1 June 2003, the date on which the current Regulation came into force.

3.4 Article 3 sets the date on which the Regulation will come into force and provides for the repeal of Regulation 859/2003 on that same date.

4. Comments

4.1 The Committee welcomes the proposal and reiterates its unconditional support for the extension of the principle of equal treatment for EU nationals and third-country nationals in the social field, and remains convinced that such equal treatment will make it easier for migrants from third countries to gradually become integrated into the Member States of the EU.

4.2 The Committee welcomes the fact that, in the context of the proposal for a Regulation extending the provisions of Regulation (EC) 883/2004 and its implementing Regulation to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality, its opinion was requested by the Council. In this respect, the Committee does not understand why its opinion was not sought in the course of proceedings for Regulation 859/2003, and why it was not able to express its position on such an important subject.

4.3 Notwithstanding the matters on which the Committee's opinion is required, the Committee feels that its opinion should be taken into account whenever issues of a social nature are under discussion, especially if they relate to provisions on social services within the context of social security.

4.4 One of the recitals of Regulation 859/2003 stresses, in accordance with Article 3 of the Protocol on the position of the United Kingdom and Ireland annexed to the Treaty on European Union and the Treaty establishing the European Community, the wish of both Member States to take part in the adoption and application of this Regulation.

4.5 In the proposed Regulation replacing Regulation 859/2003, there is no mention of this situation in any of the recitals, which leads the Committee to assume that no communication has been received from the two States. In this regard, the Committee hopes that the new Regulation will also be adopted by these two States, so as to avoid the situation mentioned in point 2.5 above, whereby Regulation 1408/71 would remain in force in only one or two Member States, and only with regard to third-country nationals.

4.6 The current Regulation 859/2003 includes an annex which sets conditions on the application of the Regulation in two Member States, for certain specific services. The text of the proposal submitted to the Committee includes no such annex. This may be due to the fact that no State has wished to include any exclusive provisions in the Regulation, or that they have not yet expressed their positions in this regard.

4.7 Whatever the reason for the omission of the annex, the Committee — in line with the position it expressed over 15 years ago in its own-initiative opinion on the status of migrant workers from third countries (5) — reiterates is call for equal treatment between EU nationals and third-country nationals in the social field, and hopes that no annex be incorporated into the new Regulation.

Brussels, 16 January 2008. The President of the European Economic and Social Committee Dimitris DIMITRIADIS

(1) OJ C 339, 31.12.1991 (rapporteur: Mr Amato).

(2) Consolidated version of the Treaty Establishing the European Community.

(3) OJ L 124, 20.5.2003.

(4) Regulation 883/2004 already covers stateless persons, refugees and family members and survivors of Community citizens.

(5) OJ C 339, 31.12.1991 (rapporteur: Mr Amato).