WRITTEN QUESTION E-2262/01

by Bartho Pronk (PPE-DE) to the Commission

(31 July 2001)

Subject: Follow-up questions on Wajong as a result of the Jauch judgment

On 17 March 2000 I asked a number of questions on the non-exportability of the Netherlands Wajong benefit (written question E-0702/00)(1). These questions were answered by Commissioner Diamantopoulou on 2 May 2000. Following new developments in case law - in particular the Jauch judgment - I would like to put a number of supplementary questions to the Commission.

1. The Commission gave me a fairly general answer relating to the coordination mechanism, in which it stated that the mechanism was correctly applied. As the law stood at the time this was indeed correct. However, the judgments in the Jauch and Leclere cases have altered the situation. Will the Commission give a new answer to the questions I put on 17 March 2000 in the light of the recent case law?

2. The third question, with regard to the free movement of workers with children, was answered to the effect that this was permitted under Snares and other applicable case law. What is the Commission's view of the statement by the Court of Justice that the regulation should aim to create the greatest possible freedom of movement for workers (Jauch judgment, paragraph 20)? Does this judgment also alter the answer initially given to my third question?

3. With regard to non-exportability, according to the Jauch and Leclere judgments, it is no longer sufficient for a benefit to be listed in Annex IIa for it to be non-exportable, but the requirements must also be satisfied in substance. Is the Commission prepared to revise Annex IIa to ensure that in future only benefits that satisfy the conditions listed in Jauch and Leclere appear on that list?

(1) OJ C 374 E, 28.12.2000, p. 138.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(5 September 2001)

The Commission wishes to confirm that, in the framework of the free movement of persons within the Community, Member States must in principle provide social security benefits acquired under their legislation to beneficiaries residing on the territory of another Member State. However, as was pointed out in the Commission's answer to written question E-702/00 by the Honourable Member, the Community rules co-ordinating the national social security systems, and in particular Regulation (EEC) No 1408/71(1), provide for certain exemptions to the principle of exportation, notably in the case of special non-contributory benefits intended either to provide supplementary, substitute or ancillary cover against the relevant risks or solely as specific protection for the disabled. Hence, the system established by this Regulation provides that such benefits, provided they are listed in Annex IIa, shall belong to a specific system which only guarantees that the benefits prescribed by the legislation of the Member State shall be provided to beneficiaries residing on its territory(2).

In Snares(3) the Court of Justice confirmed in principle the compatibility of this derogation from the principle of the exportability of social security benefits with the EC Treaty, notably in the case of benefits which are closely linked to a specific economic and social context. However, as the Honourable Member indicates in his question, the Court has supplemented this case law by the judgments handed down in Jauch(4) and Leclere(5). In these judgments the Court held that the derogation in respect of exportability resulting from the inclusion of certain benefits in Annex IIa is incompatible with the principle of free movement of workers laid down in the EC Treaty, particularly where these were not special benefits but related to the traditional areas of social security.

In the light of this jurisprudence, the Commission is currently examining whether the benefits listed in Annex IIa always meet the criteria laid down by the Court of Justice to justify their non-exportability. This examination concerns not only the Netherlands benefit Wajong but all the benefits in the Annex. The Commission plans to present to the Community legislator a package of amendments to Regulation (EEC) No 1408/71 before year's end. In this package the Commission proposes to remove from Annex IIa those entries which it feels are no longer justified, such as the Austrian and Luxembourg benefits which the Court, in its Jauch and Leclere judgements, deemed appropriate for exportation.

(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (OJ L 149, 5.7.1971), Regulation updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997).

(2) See Article 4(2)a and Article 10 of Regulation 1408/71, introduced by Regulation (EEC) No 1247/92 (OJ L 136, 19.5.1992).

(3) Judgment of 4 November 1997, Snares, C-20/96, ECR, p. I-6057.

(4) Judgment of 8 March 2001, Jauch, C-215/99, not yet published.

(5) Judgment of 31 May 2001, Leclere, C-43/99, not yet published.