Proposal for a Council Regulation amending, for the benefit of beneficiaries of pre-retirement benefits, 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 62/05)

(Text with EEA relevance)

COM(95) 735 final - 96/0001(CNS)

(Submitted by the Commission on 12 January 1996)

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal of the Commission, submitted after consulting 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 certain shortcomings in the Community rules concerned have emerged during implementation of Regulation (EEC) No 1408/71; whereas it is expedient to make certain improvements to the rights of migrant workers;

Whereas, in particular, account should be taken of various measures taken in the Member States to induce elderly workers to make way for younger workers or to refrain from requesting the employment services to help them in finding work, by providing them with a specific guaranteed income level until they reach retirement age;

Whereas the granting of these benefits, in accordance with their objective and unlike normal unemployement benefits, is not subject to the condition that the beneficiary remains available to the employment services; whereas the condition of residence that may be linked to the payments of these benefits should therefore be abolished for the beneficiaries; whereas for this purpose the export of benefits should be guaranteed for workers already receiving such benefits in the territory of the competent State who transfer their place of residence to the territory of another Member State; whereas provision should also be made for the payment of these benefits to beneficiaries who during their last employment resided in the territory of a Member State other than the competent Member State;

Whereas there are grounds for adapting the provisions governing sickness benefits and family benefits to the provisions applicable to beneficiaries of pre-retirement benefits;

Whereas there are grounds for completing Regulation (EEC) No 574/72 for the purpose of laying down the necessary procedure for any checks that have to be carried out;

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 hereby amended as follows:

1. In Article 1

(a) the third subparagraph of (j) shall be replaced by the following:

'The provisions of the preceding subparagraph shall not have the effect of exempting from the scope of this Regulation the contractual provisions concerning pre-retirement benefits.`

(b) The following paragraph shall be added after (v):

'(w) "pre-retirement benefits" mean all cash benefits, other than an early retirement benefit provided to wholly unemployed workers from a specified age until the age at which they qualify for an old-age pension or an unreduced early retirement pension, the receipt of which is not conditional upon the person concerned being available to the employment services of the competent State.`

2. In Article 4

the following point (i) shall be added:

'(i) the pre-retirement benefits`.

3. In Article 12 paragraph 3 shall be replaced by the following:

'3. The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in the case of a person in receipt of invalidity benefits or anticipatory old-age benefits or pre-retirement benefits pursuing a professional or trade activity may be invoked against such person even though he is pursuing the activity in the territory of another Member State.`

4. The following new Article 25a shall be added after Article 25:

'Section 3a

Beneficiaries of pre-retirement pensions and members of their families

Article 25a

1. The provisions of Article 19 shall apply mutatis mutandis to beneficiaries of pre-retirement pensions and to members of their families.

2. The provisions of Article 20 shall apply mutatis mutandis to beneficiaries of pre-retirement benefits and to members of their families in so far as these beneficiaries pursued their last professional trade or activity as frontier workers in the competent Member State.`

5. In Article 44

paragraph 3 shall be replaced by the following:

'3. This chapter shall not apply to:

(a) pre-retirement benefits, or

(b) to increases in pension or to supplements for pensions in respect of children or to orphans' pensions granted in accordance with the provision of Chapter 8.`

6. The following new Chapter 6a shall be inserted after Chapter 6 of Title III:

'CHAPTER 6a

PRE-RETIREMENT

Article 71a

Aggregation of periods of insurance or employment - Calculation of benefits

Articles 67 and 68 shall apply mutatis mutandis to pre-retirement benefit

Article 71b

Rules relating to the granting of pre-retirement benefits to beneficiaries transferring their place of residence to a Member State other than the State in which they were last employed and to beneficiaries who, during their last employment, resided in a Member State other than the competent State

1. Beneficiaries of a pre-retirement pension under the legislation of a Member State who reside in that State shall retain the right to such benefit if they transfer their place of residence to the territory of another Member State.

2. (a) An employed person who, during his last employment, resided in the territory of a Member State other than the competent State, shall qualify for the pre-retirement benefits provided for by the legislation of the latter State as though he resided there.

(b) The institution of the place of residence of such worker shall reimburse that benefit to the competent institution up to the amount of the unemployement benefits that it would have had to pay to the person concerned, in accordance with Article 71 (1) (a) (ii) or (b) (ii) if he had made himself available for work to the employment services of the place of residence.

(c) The reimbursement referred to in (b) shall be determined and made by common assent between the Member States concerned or the competent authorities of these States. These States or their competent authorities may waive all reimbursements between the institutions coming under their jurisdiction.

(d) The obligation to make reimbursements shall lapse if the worker referred to in (a) transfers his place of residence to another Member State.

3. The institution of the place of residence shall carry out, or have carried out any checks necessary to ascertain whether the beneficiary of the pre-retirement benefit still satisfies the conditions governing the retention of the right to benefits provided for by the legislation of the competent State. The procedure for such checks shall be laid down in the implementing Regulation.`

7. The following new Article 74a shall be added after Article 74:

'Article 74a

Beneficiaries of pre-retirement benefits, the members of whose families reside in a Member State other than the competent State

A beneficiary of a pre-retirement benefit under the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI.`

Article 2

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

1. The following new Article 26a shall be added after Article 26:

'The application of Article 25a

Article 26a

The provisions of Articles 17 to 19 of the implementing Regulation shall apply mutatis mutandis to the employed persons referred to in Article 25a of the Regulation.`

2. The following new Article 84a shall be added after Article 84:

'The application of Article 71b

Article 84a

The granting of pre-retirement benefits to beneficiaries who do not reside in the competent Member State

1. In order to retain the right to pre-retirement benefits, a beneficiary within the meaning of Article 71b of the Regulation shall be obliged to present to the institution of his place of residence a certificate on which the competent institution shall indicate any facts by virtue of which the right to benefits could be withdrawn or amended.

2. The institution of the place of residence of the person concerned shall carry or have carried out any necessary checks on these facts. It shall inform the competent institution of the occurrence of any fact referred to in paragraph 1 as soon as it comes to its notice.`

Article 3

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.