WRITTEN QUESTION E-2411/01 by Armin Laschet (PPE-DE) to the Commission. EC Regulations 1408/71 and 118/97.
Date: 2001-08-21
Institutions: European Parliament, Provisional data
Subjects: Germany, labour law, lawyer, parental leave, residence, self-employment, social security, wage earner, worker (EU)

C 115 E/76

Official Journal of the European Communities

EN

16.5.2002

Answer given by Mr Byrne on behalf of the Commission

(24 September 2001)

On 12 July 1999, with a view to protecting the health of European citizens against the effects of exposure
to electromagnetic fields,
the Council adopted Recommendation 1999/519/EC on the limitation of
exposure of the general public to electromagnetic fields (0 Hz to 300 GHz) (1). This frequency range
includes the LORAN-C system referred to by the Honourable Member.

This Recommendation provides a European framework for the protection of the public against exposure to
electromagnetic fields. The technical annex stipulates basic restrictions and reference levels which should
not be exceeded if public health is to be safeguarded.

The Recommendation calls on Member States to adopt this framework and implement the practical
measures needed to protect the public. Member States must inform the Commission of the action taken in
this direction within three years following the adoption of this Recommendation. The Commission will
continue to support research programmes on the health consequences of long-term exposure to non-
ionising radiation and to promote the achievement of an international consensus concerning guidelines
and advice on protective and preventive measures based on the text of the Recommendation.

In this connection, there is no scientific evidence of any risks linked to the use of pulsed fields below the
limits laid down by the Recommendation.

Nevertheless,
the Commission has referred the matter to the Scientific Committee on Toxicology,
Ecotoxicology and the Environment and has requested it to issue a new opinion in October 2001 on the
risks related to the development of technologies using electromagnetic radiation.

The Commission will react to any new scientific evidence not currently taken into account.

(1) OJ L 199, 30.7.1999.

(2002/C 115 E/080)

WRITTEN QUESTION E-2411/01

by Armin Laschet (PPE-DE) to the Commission

(21 August 2001)

Subject: EC Regulations 1408/71 and 118/97

EC Council Regulation No 118/97 (1) of 2 December 1996 amending and updating Regulation (EEC) No
1408/71 (2) on the application of social security schemes to employed persons, to self-employed persons
and to members of their families lays down rules concerning the receipt of social security benefits.

1.
Is it correct that, on the basis of the exclusion criteria for professional bodies referred to in
Regulation 118/97, a lawyer resident in Belgium and working on a self-employed basis in Germany is not
entitled to child-rearing benefits despite being compulsorily insured with the Bar?

Are efforts being made by the Commission to put an end to this discrimination against national

2.
citizens simply on the basis of residence in another Member State?

(1) OJ L 28, 30.1.1997, p. 1.
(2) OJ L 149, 5.7.1971, p. 2.

16.5.2002

EN

Official Journal of the European Communities

C 115 E/77

Answer given by Mrs Diamantopoulou on behalf of the Commission

(19 October 2001)

The Commission would like to draw the attention of the Honourable Member to the fact that Community
law ; notably Council Regulations (EEC) No 1408/71 and (EEC) No 574/72 ; protects the social security
rights of migrant workers by coordinating the different national social security schemes of Member
States (1). According to Article 13 (2) b) of Regulation (EEC) No 1408/71, a person who is self-employed in
the territory of one Member State but who resides in the territory of another Member State is subject to
the social security legislation of the Member State where he carries out the self-employment. A person
who works as a self-employed lawyer in Germany but who resides in Belgium should consequently be
subject to German social security legislation.

According to German law, one of the conditions for eligibility to the German child-raising allowance
(Erziehungsgeld) is, as a rule, the person’s residence in Germany. However, following a ruling by the
European Court of Justice (2) and infringement proceedings initiated by the Commission against Germany,
the relevant German law was amended as of 1 January 2001 and now gives the right to child-raising
allowance to Community or European Economic Area (EEA) nationals, who do not reside in Germany but
in another Community or EEA Member State, if they carry out an employed or self-employed activity in
Germany of not only limited working hours.

Furthermore, Regulation (EEC) No 1408/71 provides that if a person is subject to German social security
legislation he or she is entitled to family benefits, like the child-raising allowance, also in respect of family
members who reside in another Member State. It should be noted that according to Annex I Part I.
‘Point C. Germany’ of Regulation (EEC) No 1408/71, the condition to be fulfilled in order to qualify as a
self-employed person for the purpose of receiving family benefits under Regulation (EEC) No 1408/71 is to
be pursuing self-employment from which follows the obligation to join, or pay contributions in respect of,
an old-age insurance within a scheme for self-employed persons in Germany, or to join a German scheme
within the framework of compulsory insurance.

Therefore, as long as a person fulfils these criteria, he or she is principally entitled under Regulation (EEC)
No 1408/71 to receive German family benefits, even if the person resides in another Member State.

In the view of the Commission this also applies to a person who is insured under a German special
scheme for self-employed like the special scheme for barristers and counsel. Although it is correct that
these schemes are not considered to be legislation within the meaning of Regulation (EEC) No 1408/71
and are therefore excluded from the scope of the Regulation,
in the view of the Commission their
exclusion only implies that a person insured with these schemes may not rely on the provisions of the
Regulation concerning the risks for which he is insured under these special schemes, i.e. against the risks
of old-age and invalidity. Their exclusion does, however, not have any implications concerning the
application of the provisions of the Regulation concerning other risks. This is confirmed by the fact that,
according to the above mentioned Annex I, a person is considered to be self-employed for the purpose of
granting family benefits by a German institution if he/she is obligatorily insured against old-age within
such a German special scheme for self-employed.

This conclusion is also consistent with the conclusions of the European Court of Justice with regard to
Article 43 (ex-Article 54) of the EC Treaty in the two cases C-4/95 and C-5/95 (3) which also concerned the
question of entitlement to German family benefits for self-employed persons.

(1) Regulation (EEC) No 1408/71 of the Council 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 (EEC) No
574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 ;
OJ L 74, 27.3.1972. Council Regulation (EC) No 118/97 of 2 December 1996 amending and updating Regulations
(EEC) No 1408/71 and (EEC) No 574/72 ; OJ L 28, 30.1.1997.
Judgement of 10 October 1996 Hoever/Zachow C-245/94 and C-312/94, ECR 1996 pg I-4895.
Judgement of 30 January 1997 Stöber/Pereira C-4/95 and C-5/95, ECR 1997 pg I-0511.

(2)
(3)