WRITTEN QUESTION E-2262/01 by Bartho Pronk (PPE-DE) to the Commission. Follow-up questions on Wajong as a result of the Jauch judgment.
Date: 2001-07-31
Institutions: European Parliament, Provisional data
Subjects: disabled person, free movement of persons, free movement of workers, social security legislation, social-security benefit, social-security harmonisation

14.2.2002

EN

Official Journal of the European Communities

C 40 E/229

Not only the Council but also the European Parliament would be required, as part of the codecision
procedure that applies to any amendment to Regulation (EEC) No 1408/71, to give an opinion on any
such proposals.

(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 (OJ L 28, 30.1.1997).

(2) COM(2000) 379 final.
(3)
(4)

Judgment of 8 March 2001, Jauch, C-215/99, not yet published.
Judgment of 31 May 2001, Leclere, C-43/99, not yet published.

(2002/C 40 E/248)

WRITTEN QUESTION E-2262/01

by Bartho Pronk (PPE-DE) to the Commission

(31 July 2001)

Subject: Follow-up questions on (cid:145)Wajong(cid:146) as a result of the Jauch judgment

On 17 March 2000 I asked a number of questions on the non-exportability of the Netherlands (cid:145)Wajong(cid:146)
benefit (written question E-0702/00) (1). These questions were answered by Commissioner Diamantopou-
lou on 2 May 2000. Following new developments in case law (cid:129) in particular the Jauch judgment (cid:129)
I would like to put a number of supplementary questions to the Commission.

1.
The Commission gave me a fairly general answer relating to the coordination mechanism, in which it
stated that the mechanism was correctly applied. As the law stood at the time this was indeed correct.
However, the judgments in the Jauch and Leclere cases have altered the situation. Will the Commission
give a new answer to the questions I put on 17 March 2000 in the light of the recent case law?

2.
The third question, with regard to the free movement of workers with children, was answered to the
effect that this was permitted under Snares and other applicable case law. What is the Commission(cid:146)s view
of the statement by the Court of Justice that the regulation should aim to create the greatest possible
freedom of movement for workers (Jauch judgment, paragraph 20)? Does this judgment also alter the
answer initially given to my third question?

3. With regard to non-exportability, according to the Jauch and Leclere judgments,
it is no longer
sufficient for a benefit to be listed in Annex IIa for it to be non-exportable, but the requirements must also
be satisfied in substance. Is the Commission prepared to revise Annex IIa to ensure that in future only
benefits that satisfy the conditions listed in Jauch and Leclere appear on that list?

(1) OJ C 374 E, 28.12.2000, p. 138.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(5 September 2001)

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. However, as was pointed out
in the Commission(cid:146)s answer to written question E-702/00 by the Honourable Member, 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).

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14.2.2002

In Snares (3) the Court of Justice confirmed in principle the compatibility of this derogation from the
principle of the exportability of social security benefits with the EC Treaty, notably in the case of benefits
which are closely linked to a specific economic and social context. However, as the Honourable Member
indicates in his question, the Court has supplemented this case law by the judgments handed down in
Jauch (4) and Leclere (5). In these judgments 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 not only the Netherlands benefit (cid:145)Wajong(cid:146) but all the benefits in the Annex. The
Commission plans to present to the Community legislator a package of amendments to Regulation (EEC)
No 1408/71 before year(cid:146)s end. 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 its Jauch and Leclere judgements, deemed appropriate for exportation.

(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 (OJ L 28, 30.1.1997).

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

19.5.1992).
Judgment of 4 November 1997, Snares, C-20/96, ECR, p. I-6057.
Judgment of 8 March 2001, Jauch, C-215/99, not yet published.
Judgment of 31 May 2001, Leclere, C-43/99, not yet published.

(3)
(4)
(5)

(2002/C 40 E/249)

WRITTEN QUESTION E-2263/01

by Bartho Pronk (PPE-DE) to the Commission

(31 July 2001)

Subject: Non-compliance with the case law of the Court of Justice by the Belgian State Pensions Service

The overriding principle of social security law is that the Member States are entitled to maintain their own
social security schemes. In practice, this can have unfortunate outcomes, which have to be corrected by the
European Court of Justice and other courts. On 26 September 2000 the Court of Justice gave its decision
in a case involving the Belgian State Pensions Service and R Engelbrecht.

At issue in this case was Article 3(8) of the Belgian law of 20 July 1990. This law states that the pension of
a married couple is reduced where the other partner is in receipt of a pension (i.e. the partner other than
that entitled to the pension concerned). In this particular case, Engelbrecht(cid:146)s partner was in receipt of a
Dutch AOW allowance, which, under the AOW system, entailed no change in the couple(cid:146)s income. The
Court of Justice ruled that this provision constituted an obstacle to the free movement of workers and was
therefore inadmissible.

Is the Commission aware of the fact that Belgium still applies Article 3(8) of the Belgian law of

1.
20 July 1990?

Is the Commission prepared to draw the attention of the Belgian government to the fact that this

2.
legislation may no longer be applied in cases similar to the Engelbrecht case?

3.

Does the Commission intend to apply Article 228 of the EC Treaty to Belgium?

Does the Belgian State Pensions Service, as a party in the Engelbrecht
4.
responsibility of its own to apply the judgment in this case to other interested parties?

judgment, not have a

5.
Does the Commission consider that the Belgian government is liable to pay compensation, now that
a body under its responsibility is incorrectly applying the case law of the Court, causing prejudice to
individuals?