Proposal for a Council Regulation (EC) amending Regulation (EEC) No 1408/71 as regards its extension to nationals of third countries (98/C 6/06) (Text with EEA relevance) COM(97) 561 final - 97/0320(CNS)

(Submitted by the Commission on 10 December 1997)

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 after consultation of the social partners and of 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 the Corfu European Council decided in June 1994 to step up efforts to develop, at European Union level, a comprehensive strategy for combating racism and xenophobia;

Whereas the Council and the Member States recognised, in their resolution of 5 October 1995 on the fight against racism and xenophobia in the fields of employment and social affairs (1), 'the great importance of implementing, in the field of social policy, policies based on the principles of non-discrimination and equal opportunities at Union and Member State level, within the framework of their respective powers, as a contribution to the common fight against racism and xenophobia`;

Whereas the European Parliament has on several occasions called for equal treatment to be given to Community nationals and nationals of third countries in the social sphere, for example in its resolution of 30 January 1997 on racism, xenophobia and anti-Semitism and the European Year against Racism (1997) (2);

Whereas the Economic and Social Committee has echoed this call, particularly in its opinion of 26 September 1991 on the status of migrant workers from third countries (3);

Whereas, in the preamble to the Single European Act, the Member States emphasise the need 'to work together to promote democracy on the basis of the fundamental rights recognised in the constitutions and laws of the Member States, in the Convention for the Protection of Human Rights and Fundamental Freedoms and the European Social Charter, notably freedom, equality and social justice`;

Whereas Article F (2) of the Treaty on European Union provides that the Union 'shall respect fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms signed in Rome on 4 November 1950 and as they result from the constitutional traditions common to the Member States, as general principles of Community law`;

Whereas the promotion of a high level of social protection and the raising of the standard of living and quality of life in the Member States are objectives of the Community;

Whereas Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (4) already applies to workers moving within the Union even where they have not exercised their right to freedom of movement as migrant workers;

Whereas, given that certain provisions of Regulation (EEC) No 1408/71 are already applicable to persons who are not migrant workers within the meaning of Article 48 of the EC Treaty, Article 51 of the EC Treaty allows the Community to coordinate national social security schemes for all workers insured under one of those schemes, even if they are not migrant workers within the meaning of Article 48 of the EC Treaty;

Whereas the large number of legal instruments governing problems encountered by nationals of third countries in connection with the coordination of Member States' social security schemes creates significant legal and administrative complexity;

Whereas the lack of a clear and consistent set of rules for coordinating social security matters could give rise to specific problems such as double levying of contributions in the case of service providers employing workers who are nationals of third countries;

Whereas the application of Regulation (EEC) No 1408/71 should therefore be extended to nationals of third countries; whereas that Regulation should be amended accordingly;

Whereas transitional provisions should be adopted to protect the persons referred to by the present Regulation and to ensure that they do not lose rights as a result of its entry into force;

Whereas the extension of Regulation (EEC) No 1408/71 to nationals of third countries will further the aim of equal treatment for such persons with Community nationals in the social sphere, particularly as regards coordination of the Member States' social security schemes, and is conducive to simplifying and clarifying the legal rules applicable within the Community;

Whereas the extension of Regulation (EEC) No 1408/71 to nationals of third countries must not give the persons concerned any entitlement to enter, to stay or reside in a Member State or to have access to its labour market;

Whereas, to achieve these objectives, it is necessary and appropriate that the rules for coordinating national social security schemes be amended by means of a Community legal instrument which is binding and directly applicable in every Member State;

Whereas the amendments made by this Regulation are in accordance 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 hereby amended as follows:

1. In Article 1, points (d) and (e) shall be deleted.

2. Article 2 shall be amended as follows:

(a) Paragraph 1 shall be replaced by the following:

'1. This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and their survivors.`

(b) Paragraph 3 shall be deleted.

3. Article 22a shall be replaced by the following:

'Article 22a

Special rules for certain categories of persons

Notwithstanding Article 2, Article 22 (1) (a) and (c) shall also apply to persons who are insured under the legislation of a Member State and to the members of their families residing with them.`

4. The following Article 95c shall be inserted:

'Article 95c

Transitional provisions for application of Regulation (EC) No . . . (*)

1. No entitlement for periods prior to . . . shall be acquired pursuant to Regulation (EC) No . . . (**).

2. Any period of insurance and, where appropriate, any period of employment, self-employment or residence completed under the legislation of a Member State before . . . shall be taken into consideration for the determination of rights acquired in accordance with the provisions of this Regulation.

3. Subject to the provisions of paragraph 1, a right shall be acquired pursuant to this Regulation even where it relates to a contingency which materialised prior to . . .

4. Any benefit which has not been awarded or which has been suspended on account of the nationality or the residence of the person concerned shall, at the latter's request, be awarded or resumed with effect from . . ., provided that the rights for which benefits were previously awarded dit not give rise to a lump-sum payment.

5. The rights of persons to whom a pension was awarded prior to . . . may be reviewed at their request, taking into account the provisions of Regulation (EC) No . . .

6. If the request referred to in paragraph 4 or paragraph 5 is lodged within two years from . . ., the rights acquired pursuant to this Regulation shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.

7. If the request referred to in paragraph 4 or paragraph 5 is lodged after expiry of the period referred to in paragraph 6, rights which have not been forfeited or which are not statute-barred shall have effect from the date of such request, except where more favourable provisions of the legislation of any Member State apply.

(*) Number of the Regulation resulting from this proposal.

(**) Date of entry into force of the Regulation resulting from this proposal.`

Article 2

This Regulation shall enter into force on the first day of the 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.

(1) OJ C 296, 10. 11. 1995, p. 13.

(2) OJ C 55, 24. 2. 1997, p. 17.

(3) OJ C 339, 31. 12. 1991, p. 82.

(4) OJ L 149, 5. 7. 1971, p. 2. Regulation updated by Regulation (EC) No 118/97 (OJ L 28, 30. 1. 1997, p. 1) and last amended by Regulation (EC) No 1290/97 (OJ L 176, 4. 7. 1997, p. 1).