WRITTEN QUESTION E-0295/02

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

(11 February 2002)

Subject: Restrictions on freedom of movement by the Belgian government law on guaranteed family allowances

The rules coordinating social security give responsibility for family allowances to the country in which frontier workers are employed.

Belgium, on the other hand, has listed its legislation on guaranteed family allowances (Belgian law of 20 July 1971) in Annex IIa to Article 10a of Regulation 1408/71(1). Consequently, under the law, it is not possible to export the allowances. Frontier workers living in the Netherlands and employed in Belgium are not entitled, for example, to Belgian maternity benefits or the adoption allowance. The new taxation agreement between the Netherlands and Belgium also stipulates that frontier workers employed in Belgium are taxable in Belgium and therefore pay tax as well as social security contributions in Belgium.

1. Does the Commission not agree that this situation creates an obstacle to the free movement of workers? What measures does it intend to take in this connection?

2. In response to earlier questions by Bartho Pronk, the Commission promised to review Annex IIa to Article 10a of Regulation 1408/71 in the light of the Jauch and Leclere judgments (Answer to written question E-2262/01(2)). Is the Commission prepared specifically to include the Belgian law on guaranteed family allowances (Law of 20 July 1971) in this review and thus ensure that the group of frontier workers concerned receive the allowances to which they are entitled?

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

(2) OJ C 40 E, 14.2.2002, p. 229.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(2 May 2002)

With regard to guaranteed family benefits in Belgium (Law of 20 July 1971), the Honourable Members raise the question of the inclusion of these benefits in Annex IIa of Regulation (EEC) No 1408/71(1). The social security benefits listed in this Annex are not covered by the principle of exportability.

As the Commission already indicated in its answer to question E-2262/01 from Mr Pronk(2), the Court of Justice, dealing exclusively with the question of the validity of Regulation 1247/92 which introduced Annex IIa, confirmed in its judgment in Snares(3) that this derogation from the principle of the exportability of social security benefits was as such compatible with the EC Treaty, especially since the benefits concerned were closely linked to a specific economic and social context. The Court did not look at the conditions for inclusion of specific benefits in Annex IIa on the basis of their nature in national law, and thus did not examine the general accuracy of the entries. However, the Court has added to this case law in its judgments in Jauch(4) and Leclere(5), in which it held that the derogation in respect of exportability resulting from the inclusion of certain benefits in Annex IIa was 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 these rulings, 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 Belgian guaranteed family benefits. The Commission plans to present to the Community legislator a package of amendments to Regulation (EEC) No 1408/71 in the next few months. 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 Jauch and Leclere, deemed appropriate for export.

As regards the childbirth allowance and the adoption premium, these benefits are entered in Section II of Annex II of Regulation (EEC) No 1408/71 and are thus excluded from the scope of the Regulation, including its provisions on the export of benefits.

In Leclere, however, the Court of Justice stated that, given the wide discretion which the Council enjoys in implementing Articles 48 and 51 of the EC Treaty, the fact that a category of benefits is not affected by the coordination provisions of Regulation (EEC) No 1408/71 could not on any view render the relevant provisions of that Regulation invalid. Restriction of the scope of Regulation (EEC) No 1408/71 cannot in itself have the effect of adding further disparities to those resulting from the lack of harmonisation of national legislation, or the effect of infringing the principle of equal treatment

The Court nevertheless also stated that the exclusion of benefits from the scope of Regulation (EEC) No 1408/71 did not have the effect of dispensing Member States from the need to ensure that no other rule of Community law, deriving in particular from Regulation (EEC) No 1612/68(6), precludes the imposition of a residence condition. In the case of the frontier workers we are concerned with here, a residence requirement as a condition of eligibility for the childbirth allowance and the adoption premium would constitute indirect discrimination and thus be in contravention of Article 39 of the EC Treaty and Article 7(2) of Regulation (EEC) No 1612/68.

The Commission has contacted the Belgian authorities, and also the authorities of the other Member States which have similar benefits that are excluded from the scope of Regulation (EEC) No 1408/71 through being entered in Section II of Annex II (particularly France, Luxembourg and Finland), in order to raise this matter with them. It will keep the Honourable Members informed about any further steps it takes in this connection.

The Commission would also inform the Honourable Members that it intends, by the end of the year, to draw up a communication concerning all recent rulings of the Court of Justice relating to the free movement of workers, including the coordination of social security schemes. This communication will seek to identify and clarify the rights of European citizens deriving from these rulings.

(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 (OJ L 149, 5.7.1971), which was updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997).

(2) OJ C 40 E, 14.2.2002.

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

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

(5) Judgment of 31 May 2001 in Case C-43/99 Leclere, ECR I-4265.

(6) Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the Community (OJ L 257, 19.10.1968).