Opinion of the Economic and Social Committee on the 'Proposal for a Council Regulation (EC) amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71'
Date: 1997-12-10
Institutions: European Economic and Social Committee
Subjects: self-employed person, self-employment, social security, working conditions, working population

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Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation
(EC) amending Regulation (EEC) No 1408/71 on the application of social security schemes to
employed persons, to self-employed persons and to members of their families moving within
the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing
Regulation (EEC) No 1408/71’

(98/C 73/09)

On 11 September 1997 the Council decided to consult the Economic and Social Committee,
under Article 198 of the Treaty establishing the European Community, on the above-mentioned
proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 13 November 1997.
The rapporteur was Mr Angelo.

At its 350th plenary session (meeting of 10 December 1997), the Economic and Social
Committee adopted the following opinion by 104 votes in favour, 3 against and 4 abstentions.

1.

Introduction

in Regulation (EEC) No 1408/71, which the present
proposal updates and amends.

Regulations (EEC) No 1408/71 and (EEC) No 574/72
were consolidated in a single official text by Regulation
(EC) No 118/97, and were amended and updated by
Regulation (EC) No 1290/97.

The present proposal seeks mainly to amend the two
regulations on the basis of the amendments which
Regulation (EC) No 3095/95 made to Article 95 of
Regulation (EEC) No 574/72.

The proposal is also designed to update the regulations
to take account of changes in national
legislation
and certain bilateral conventions concluded between
Member States.

2. General comments

2.1.
The Committee welcomes the amendments
which update the rules for applying of social security
schemes to the various categories of insured persons.
The Committee also supports the proposals which,
while not providing specific updating, nevertheless
simplify and clarify situations
that have led to
implementing difficulties.

A clear and reliable reference framework in this
2.2.
area will make it easier for the persons concerned to
move within the EU. This will further one of the basic
principles of the Union, namely the free of movement of
persons.

2.3. Here the Committee is pleased to note — while
not yet entering into details — that the Commission has
also issued a proposal for the initial regulation of
transfer of supplementary pension rights. This will
complement the rules on statutory schemes laid down

2.4.
Comprehensive rules are needed on the transfer
of all pension rights, whether statutory or supplemen-
tary. Supplementary schemes have been growing steadily
in recent years, especially among more highly skilled
persons who are more likely to move around. It is to be
hoped that real progress can now be achieved in
removing obstacles to mobility.

3. Analysis of the proposed amendments

3.1. General point

3.1.1.
Article 95 of Regulation (EEC) No 574/72
regulates the refund on benefits in kind provided under
health and maternity insurance to pensioners and to
members of their families who do not reside in a Member
State under whose legislation they receive a pension and
are entitled to the benefits in kind concerned.

3.1.2.
The refund is paid as a lump sum. Until
Regulation (EC) No 3095/95 entered into force, the sum
was calculated on the basis of the average cost per
family. Article 2 of Regulation (EC) No 3095/95 made
it possible to determine an average cost per person,
thereby bringing the lump sum closer to the real cost of
the benefit.

As well as making the amendments necessitated by the
new system for calculating the lump-sum reimbursement
(which in practice becomes a lump-sum reimbursement
per person), the proposal also seeks to regulate certain
situations where the relations between the institutions
of the Member States are unclear.

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3.1.3.
It should be borne in mind that where a lump
sum is not provided, the refund on benefits in kind
(hospitalization, etc.) is related to the effective cost and
made on the basis of the legislation of the country of
residence of the pensioner.

In contrast, the relations between the institutions of the
state of residence and those of the state responsible for
the pension are regulated on the basis of the lump-sum
system.

There is always a difference (whether large or small)
between effective costs and a lump-sum repayment,
because the cost of benefits in kind differs from one
Member State to the next. Hence the concern to limit
such imbalances as far as possible.

3.2. Article 1: amendments

to Regulation (EEC)

No 1408/71

The Commission proposes to amend Articles 29 and 31.
These concern cases where benefits in kind are received
by members of the family of a pensioner who are resident
(Article 29) or are staying (Article 31) in a Member State
other than the one in which the pensioner resides.

3.2.1. A m e n d m e n t o f A r t i c l e 2 9 ( 1 ) ( a )

This establishes the new principle that if the family
member resides in the Member State which is responsible
for paying the pension (the ‘competent state’), the
benefits in kind are provided by that state and the cost
is borne by it, even if the pensioner resides in another
state.

This contrasts with the existing legislation, which obliges
the state of residence of the pensioner to pay the benefits
to family members who reside in the competent state.

3.2.2. A m e n d m e n t o f A r t i c l e 3 1 ( a )

It should be noted that — in contrast to the new
Article 29 — this will also apply when the family
member is staying in the competent state.

3.2.3. A m e n d m e n t o f A n n e x I

A n n e x I I
A n n e x I V a n d A n n e x V I

( P a r t

I ) ,
I I ) , A n n e x I I a ,

( P a r t

These amendments simply update the annexes, so as to
align them with changes in the legislation of the countries
concerned. They are essentially formal amendments and
do not require particular comment.

3.3. Article 2: amendments

to Regulation (EEC)

No 574/72

After amending Regulation (EEC) No 1408/71, the
Commission proposes to amend certain articles of the
implementing regulation. These too follow on from the
amendments which Regulation (EC) No 3095/95 made
to Article 95 of Regulation (EEC) No 574/72.

3.3.1. A m e n d m e n t o f A r t i c l e 2 9 ( 1 ) ,

( 2 )

a n d ( 5 )

The Commission proposes to specify that the obligations
refer to family members who reside in the same Member
State as the pensioner.

3.3.2. A m e n d m e n t o f A r t i c l e 3 0 ( h e a d i n g
a n d p a r a g r a p h s 1 , 3 a n d 5 )

These amendments follow directly from those made to
Article 29 of Regulation (EEC) No 1408/71 regarding
the new situation of pensioners’ family members who
reside in the competent state. Both the heading of the
article and the conditions to be fulfilled are altered
accordingly. A new paragraph also has to be added at
the end. Its wording is taken from another new provision.

The amendment to Article 95 of Regulation (EEC)
No 574/72 also provides for lump-sum repayment to the
state of residence of family members, if this is not the
state of residence of the pensioner. If family members
are staying in another state, reimbursement of the
effective cost of benefits in kind will in future be made
by their state of residence, rather than (as at present) by
the state of residence of the pensioner.

3.3.3. A m e n d m e n t o f A r t i c l e 3 1 ( 3 )

This stipulates that when family members are staying in
another Member State, the formalities which formerly
were the responsibility of the institution of the pen-
sioner’s place of residence will now be conducted by the
institution of the family members’ place of residence.

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3.3.4. A m e n d m e n t o f A r t i c l e 9 3 ( 1 ) a n d

3.3.7. A m e n d m e n t o f A n n e x 9

( 2 )

Following other amendments, this provides for deletion
of the references to Article 29(1) of Regulation (EEC)
No 1408/71.

3.3.5. A m e n d m e n t o f A r t i c l e 9 5 ( 1 ) a n d

( 3 ) ( b )

Article 95 — the amendment of which triggered the
amendments being discussed here — also has to be
amended. This is because it is necessary to add a
reference to Article 29(1), so that the benefits subject to
lump-sum refunds will include those enjoyed by family
members who do not reside in the state of residence of
the pensioner.

3.3.6. A m e n d m e n t o f A n n e x e s

1 ,

2 ,

3

a n d 4

These too are formal amendments, mainly due to
changes in the names of the institutions concerned. They
require no special comment.

Brussels, 10 December 1997.

Certain sections are amended, mainly in order to
add references to bilateral agreements that have been
concluded in the interim.

3.3.8. A m e n d m e n t o f A n n e x 1 0

Here too, certain sections are amended, mainly due to
changes in the names of the institutions concerned.

3.4. Article 3 — Date of entry into force of the

regulation

4. Conclusions

4.1.
The Committee welcomes the amendments as
they constitute an essential update and facilitate
implementation by establishing more precise rules on
related issues which could give rise to dispute. However,
the Committee asks that a clearer and more detailed
explanatory memorandum be provided in future, so as
to make it easier to understand the purpose of each
provision.

The President

of the Economic and Social Committee

Tom JENKINS