WRITTEN QUESTION E-0716/02

by Ria Oomen-Ruijten (PPE-DE) and Bartho Pronk (PPE-DE) to the Commission

(15 March 2002)

Subject: Care insurance in Flanders

In Flanders, Belgium, a Flemish care insurance scheme (zorgverzekering) has recently come into existence. It is not clear whether it falls within the scope of Regulation 1408/71(1).

Does the Commission take the view that the Flemish care insurance scheme falls within the scope of Article 4(1)(a) of Regulation 1408/71? If not, may the Flemish authorities introduce qualifying periods for EEA workers or retired workers who move to Flanders?

(1) OJ L 149, 5.7.1971, p. 2.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(23 April 2002)

As regards the scope of 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, the Commission would like to remind the Honourable Members that the distinction between benefits excluded from the scope of the Regulation and those which fall within it is based essentially on the constituent elements of each particular benefit, in particular its purpose and the conditions under which it is granted, and not on whether or not it is classified as a social security benefit by national legislation (see Molenaar judgment(1), paragraph 19). Furthermore, the fact that benefits fall within the scope of Regulation (EEC) No 1408/71 in no way influences how they are classified under national legislation (see, by analogy, judgment in the case Commission v French Republic(2), paragraph 32).

A benefit may be regarded as a social security benefit within the meaning of Regulation (EEC) No 1408/71 in so far as it is granted, without any individual and discretionary assessment of personnel needs, to recipients on the basis of a legally defined position and provided that it concerns one of the risks expressly listed in Article 4(1) of Regulation No 1408/71. That list is exhaustive, so that a branch of social security not mentioned therein does not fall within that category even if it confers upon recipients a legally defined position entitling them to benefits (see in particular Molenaar judgment, paragraphs 20 et seq).

In the case of care insurance, as introduced by the Decree of the Flemish Community of Belgium of 30 March 1999 on the organisation of care insurance, which is the subject of the Honourable Members' question, it is clear that the provisions on the granting of the care insurance benefits in question give recipients a legally defined right.

It therefore ensues from the legislation in question and from the information available to the Commission that care insurance gives entitlement to full or partial direct payment of certain expenditure entailed by the insured person's reliance on care, such as care provided in the home or in specialised centres or hospitals, and the purchase of equipment and materials required by insured persons, such as special beds, mattresses or chairs, respirators and oxygen cylinders. Accordingly, benefits of that type are

essentially intended to supplement sickness insurance benefits in order to improve the state of health and the quality of life of persons reliant on care. Under these circumstances, they must be regarded as sickness benefits within the meaning of Article 4(1)(a) of Regulation (EEC) No 1408/71 (see also Molenaar judgment, paragraphs 23-25, and Jauch judgment(3), paragraph 28).

Since the care insurance benefits in question consist of direct payment or reimbursement of the costs incurred as a result of the insured person's reliance on care, they fall within the definition of the benefits in kind referred to in Articles 19(1)(a), 25(1)(a), and 28(1)(a) of Regulation No 1408/71 (see Molenaar judgment, paragraph 32).

Article 18 of the said Regulation also applies to these benefits. According to paragraph 1 of this Article, the competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence shall, to the extent necessary, take account of periods of insurance, employment or residence completed under the legislation of any other Member State as if they were periods completed under the legislation which it administers.

Consequently, the condition applicable to Community nationals, which was introduced into the legislation in question by the Decree of 18 May 2001 referred to by the Honourable Members, requiring them to have paid contributions for at least five years, must be applied in such a manner that periods of health insurance completed under the legislation of another Member State are regarded as insurance periods within the meaning of the legislation in question.

The Commission has contacted the Belgian authorities in order to verify the legislation in question's consistency with Community law and its application to Community nationals. It will keep the Honourable Members informed of developments.

(1) Judgment of 5 March 1998, Molenaar, C-160/96, ECR I-0843.

(2) Judgment of 15 February 2000, Commission v French Republic, C-169/98, ECR I-1049.

(3) Judgment of 8 March 2001, Jauch, C-215/99, ECR I-1901.