WRITTEN QUESTION E-0764/02

by Ieke van den Burg (PSE)and Anne Van Lancker (PSE) to the Commission

(18 March 2002)

Subject: Restriction on the right to export Belgian benefits under the half-time bridging pension scheme

Belgian legislation governing the half-time bridging pension scheme (early retirement) provides the right to a benefit consisting of a payment from the unemployment office (National Employment Service) and a non-statutory top-up payment from the sector funds. Up to now the Belgian government has ruled that frontier workers from neighbouring countries cannot claim this benefit because the bridging pension is deemed to be an unemployment benefit and not a temporary unemployment benefit.

The Belgian government's argument can be refuted on the following grounds: (1) the recipient of a bridging pension does not have to register as seeking employment and is not subject to the obligation to apply for jobs and that it follows from the legal basis, as stated in Collective Agreement No 55, that all payments under the bridging pension scheme are classed as social benefits in accordance with Article 7, paragraph 2 and/or 4 of Regulation (EEC) 1612/68;(1) (2) if the payment is to be regarded as a benefit under the unemployment system there is at least a question of partial unemployment, so that in accordance with Article 71(1)(a)(i) of Regulation (EEC) 1408/71(2) this benefit should be granted by the Belgian authorities to frontier workers employed in Belgium in combination with the remaining Belgian salary. The latter point is established in Judgment C-444/98 of the Court of Justice (De Laat/LISV).

What is the Commission's opinion? Does the Commission take the view that benefits under the Belgian half-time bridging pension scheme should, in accordance with Article 71(1)(a)(i) of Regulation (EEC) 1408/71 or with Article 7(2) and (4) of Regulation (EEC) 1612/68, be granted to frontier workers from France, the Netherlands, Germany and Luxembourg working in Belgium?

(1) OJ L 257, 19.10.1968, p. 2.

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

Answer given by Ms Diamantopoulou on behalf of the Commission

(13 May 2002)

The Honourable Members inquire as to the correctness of the Belgian authorities' position whereby the half-time bridging pension cannot be granted to frontier workers because it is considered to be a benefit for wholly unemployed persons.

Pursuant to the Belgian legislation governing the half-time bridging pension scheme, the benefits provided under the scheme consist, on the one hand, of a top-up payment to cover the reduction in work in accordance with Collective Agreement No 55 and, on the other, of a lump-sum unemployment payment.

As regards frontier workers' entitlement to unemployment benefits, Article 71(1)(a) of Regulation (EEC) No 1408/71(1) says:

(i) A frontier worker who is partially or intermittently unemployed in the undertaking which employs him shall receive benefits in accordance with the provisions of the legislation of the competent State as if he were residing in the territory of that State; these benefits shall be provided by the competent institution.

(ii) A frontier worker who is wholly unemployed shall receive benefits in accordance with the provisions of the legislation of the Member State in whose territory he resides as though he had been subject to that legislation while last unemployed; these benefits shall be provided by the institution of the place of residence at its own expense.

The Commission believes that partially unemployed persons are persons who retain links with a gainful activity on whose basis they are already subject to the social security legislation of the State of employment, whereas wholly unemployed persons are persons who no longer have any link with the State of employment (cf. judgment in the Laat case C-444/98 of 15 March 2001(2)).

Consequently, frontier workers employed in Belgium applying for the half-time bridging pension must, as regards the unemployment payment, be considered to be partially unemployed persons and must therefore receive unemployment benefits pursuant to Belgian legislation at the Belgian institution's expense.

As for the top-up payment, the Commission believes that it is a social advantage within the meaning of Article 7 of Regulation (EEC) No 1612/68(3) and it must therefore be granted to frontier workers in the same way as to national workers.

The Commission will be contacting the Belgian authorities to obtain further explanations about application of the half-time bridging pension scheme to frontier workers and will inform the Honourable Members of developments on this matter.

(1) 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, as amended by Council Regulation (EC) No 118/97 of 2 December 1996, OJ L 28, 30.1.1997, and Council Regulation (EEC) No 574/72 of 21 March 1972, OJ L 74, 27.3.1972.

(2) European Court Reports 2001 Page I-02229.

(3) Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community.