C 80/118 EN 30.3.2004 Official Journal of the European Union
Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of
the European Parliament and of the Council amending Regulation (EEC) No 1408/71 on the
application of social security schemes to employed persons, to self-employed persons and to
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’
(COM(2003) 468 final — 2003/0184 (COD))
(2004/C 80/29)
On 3 September 2003 the Council decided to consult the European Economic and Social Committee,
under Article 262 of the Treaty establishing the European Community, on the above-mentioned 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 25 November 2003. The rapporteur wasMr Boldt.
At its 404th plenary session (meeting of 10 December 2003), the European Economic and Social
Committee adopted the following opinion by 111 votes to 1 with 5 abstentions.
1. Introduction
1.1. Since 1971 Regulation (EEC) No 1408/71 has been
updated and amended several times in order to take accountof changes to Member State social security systems and of the
case law of the Court of Justice of the European Communities,
which impacts on the future implementation of the regulation.EU enlargement has also necessitated a certain number of
amendments.
1.2. Amendments to Regulation (EEC) No 1408/71 have
been accompanied by amendments to Regulation (EEC)
No 574/72, for reasons of consistency with the former.
2. Gist of the Commission proposal
2.1. The Commission has submitted a proposal for a
Regulation amending Council Regulation (EEC) No 1408/71
on the application of social security schemes to employed
persons, to self-employed persons and to members of theirfamilies moving within the Community, and Regulation (EEC)No 574/72 laying down the procedure for implementing
Regulation (EEC) No 1408/71. The main aim of the proposal
is to update Regulations (EEC) No 1408/71 and (EEC) No 574/72, in particular as regards special non-contributory cash
benefits. The need for urgent action became apparent in the
wake of a number of decisions of the Court of Justice ofthe European Communities, which have set precedents for
implementation of Regulation (EEC) No 1408/71.
2.2. On several occasions the Court has considered that the
‘principle of exportability’ must be interpreted strictly. Thismeans that it can only exclude benefits which are special, non-contributory and listed in Annex II a.2.3. The proposal also aims to take account of changes in
national legislation. These could be a result of Court of Justicedecisions or of the way social security systems have developed
in individual Member States.
2.4. The draft regulation also proposes updating Com-
munity regulations covering the relationship between theregulation and the provisions contained in bilateral social
security agreements.
2.5. Other Commission proposals deal with amendments
to the Annexes referring to the Member States and technicaladaptations.
3. General comments
3.1. The Committee welcomes the Commission proposal
and would reiterate the comment made in its Opinion of
27 January 1999 on the Application of social security schemesto employed persons, self-employed persons and members oftheir families (
1),viz. that any amendments must satisfy the
need to review and update the regulations designed to facilitate
the coordination of social security systems (2). The proposal
also comes at a time when the major review to update
and simplify Regulation (EEC) No 1408/71 and to improve
coordination, is in the final stages.
(1) OJ C 101, 12.4.1999.
(2) OJ C 75, 15.3.2000.
30.3.2004 EN C 80/119 Official Journal of the European Union
3.2. Despite the achievement of unanimity on the text of
Title III Chapter 8 (special non-contributory cash benefits) and
on the main principles of the Annexes to Regulation (EEC)
No 1408/71, the types of benefit the various countries mustinclude in the Annexes remain to be agreed. There is thus apossibility that the content of the current proposal could be
amended.
3.3. The Committee fully endorses the plan to overhaul
Regulations (EEC) No 1408/71 and (EEC) No 574/72, to make
legislation clearer and easier to interpret and understand forEU citizens who make use of the right to move within the
Community. It is therefore important that current legal practice
should be enshrined in the legislation.
4. Comments on individual articles
4.1. Article 1(1): proposed replacement for Article 4(2a).
This defines ‘special non-contributory cash benefits’. Theproposal clarifies the expression and complies with case law.
The proposed amendment to Article 4(2a) is consistent with
the wording agreed for the review of Regulation (EEC)No 1408/71. The proposal is structured logically and is easier
to understand than the current wording.
4.2. Article 1(3): proposal to replace Article 10(1a) to make
it easier to understand which rights are not exportable. This
Brussels, 10 December 2003.
The President
of the European Economic and Social Committee
Roger BRIESCHproposal clarifies the text without making any substantive
changes.
4.3. Article 1(4): proposal to add a new paragraph 2a) to
Article 23, specifying how the reference period from severalMember States is to be taken into account. The proposal
clarifies the text and reduces interpretation difficulties. Citizens
are thus better able to understand and interpret their rights.
4.4. Article 1(5): proposal to reword Article 33(1) in
order to clarify the extra demands made upon the relevant
institutions when calculating pensions. This amendment isalso necessary. It improves legal certainty for the individual.
4.5. The amendments contained in the Annexes are a
response to EU Court of Justice decisions and/or amendmentsto national legislation. The Committee believes that an updateof the regulation is vitally important to safeguarding, in
practice, citizens’ social rights. The Committee assumes that
Council negotiations on Annex IIa can be concluded as soonas possible, so that the proposal can enter into force.
5. Conclusions
The European Economic and Social Committee endorses the
proposed amendment of both regulations. The amendmentsare warranted by the need for clarity and transparency, and
will help to improve both legal and social protection for
citizens.