WRITTEN QUESTION E-1347/02

by Robert Evans (PSE) to the Commission

(13 May 2002)

Subject: Social security provision

Would the Commission clarify the current situation regarding Member States' obligations towards their citizens who move to another EU country, as regards the continued payment of social security benefits?

I have a constituent who has been receiving Disability Living Allowance and who wishes to move to Belgium, where he will live with his partner. It seems that he is entitled to continue receiving Incapacity Benefit but not Disability Allowance.

Would the Commission clarify this?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(20 June 2002)

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. This is the case with the British Incapacity Benefit.

However, 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). This list includes the British disability living allowance.

The validity of Council Regulation (EEC) No 1247/92 was questioned in case C-20/96, Snares v Adjudication Officer. The Court of Justice held in that case that the amendments introduced by Regulation (EEC) No 1247/92 actually worked to protect the interests of migrant workers in accordance with Article 51 (now Article 42) of the EC Treaty. This is because such a person can be entitled to these special non-contributory benefits in the Member State of residence without having previously been subject to that Member State's social security system, and the Member State of residence will, in appropriate cases, have to take into account periods of employment, residence and insurance completed in other Member States. The Court therefore concluded that the Community legislator was entitled to enact Regulation (EEC) No 1247/92. This conclusion was confirmed by the Court in the Partridge case (C-297/96) at paragraph 29, in the Jauch case (C-215/99) at paragraph 21 and in the Leclere case (C-43/99) at paragraph 32.

In the Snares judgements the Court of Justice, answering exclusively the question of the validity of Community Regulation (EEC) No 1247/92, confirmed in principle the compatibility of such a derogation from the principle of the exportability of social security benefits with the EC Treaty, in particular in the case of benefits which are closely linked to a specific economic and social context. The conditions for the entry of any particular benefit in Annex IIa, according to its characteristics under national law, and therefore the correctness in general of the entry of the benefits in the Annex, were not considered by the Court. However, the Court has supplemented this case law by the judgements handed down in Jauch and Leclere. In these judgements 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 all the benefits in the Annex including the British disability living allowance. If certain benefits do not satisfy those criteria, the Commission will propose to the Community legislator to remove from Annex IIa those entries which it feels are no longer justified to present legislative amendments or even pursue infringement proceedings.

(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 of 2 December 1996, (OJ L 28, 30.1.1997).

(2) See Article 4(2)a and Article 10(a) of Regulation (EEC) No 1408/71, introduced by Regulation (EEC) No 1247/92 of 30 April 1992, (OJ L 136, 19.5.1992).