WRITTEN QUESTION E-0295/02 by Bartho Pronk (PPE-DE) and Ria Oomen-Ruijten (PPE-DE) to the Commission. Restrictions on freedom of movement by the Belgian government law on guaranteed family allowances.
Date: 2002-02-11
Institutions: European Parliament, Provisional data
Subjects: Belgium, case-law (EU), derogation from EU law, family benefit, free movement of workers, frontier worker, interpretation of the law, social-security harmonisation

29.8.2002

EN

Official Journal of the European Communities

C 205 E/109

(2002/C 205 E/121)

WRITTEN QUESTION E-0289/02

by Christoph Konrad (PPE-DE) to the Commission

(11 February 2002)

Subject: Distortion of competition caused by the supplementary pension fund of the German building

industry

1.
How does the Commission view the disadvantageous position of the German building industry, in
comparison with the rest of Europe, caused by the obligation to pay into the building industry’s
supplementary pension fund in Wiesbaden?

2. What
is the Commission’s reaction to this distortion of competition? Have there been any
investigations, examinations, decisions or other deliberations as to how to rectify this discrimination
against the German building industry?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(3 April 2002)

The European competition rules prohibit certain agreements between undertakings that would be harmful
to competition (Article 81 of the EC Treaty), the abuse of a dominant position (Article 82 of the EC Treaty)
and certain forms of State aid which may distort competition. However, national rules resulting from
legislation or collective agreements and which are likely to weaken a sector’s competitiveness are not
covered by European competition law, since it would be contrary to the principle of the bargaining
autonomy of the social partners if Community law prevented the social partners from negotiating pay
levels and arrangements for workers in a given sector. As regards legislative rules, it should be noted that
provisions such as those referred to by the Honourable Member are not damaging to undertakings in other
Member States and therefore there is no need for the Community to intervene.

(2002/C 205 E/122)

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.

Does the Commission not agree that this situation creates an obstacle to the free movement of

1.
workers? What measures does it intend to take in this connection?

C 205 E/110

Official Journal of the European Communities

EN

29.8.2002

In response to earlier questions by Bartho Pronk, the Commission promised to review Annex IIa to
2.
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.

in Snares (3)

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
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.

this derogation from the principle of

that

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.

29.8.2002

EN

Official Journal of the European Communities

C 205 E/111

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)
(4)
(5)
(6) Council Regulation (EEC) No 1612/68 of 15 October 1968 on freedom of movement for workers within the

Judgment of 4 November 1997 in Case C-20/96 Snares, ECR I-6057.
Judgment of 8 March 2001 in Case C-215/99 Jauch, ECR I-1901.
Judgment of 31 May 2001 in Case C-43/99 Leclere, ECR I-4265.

Community (OJ L 257, 19.10.1968).

(2002/C 205 E/123)

WRITTEN QUESTION E-0310/02

by Ria Oomen-Ruijten (PPE-DE)
and Konstantinos Hatzidakis (PPE-DE) to the Commission

(11 February 2002)

Subject: Prevention of whiplash injury

Every year there are a large number of car accidents in the European Union in which the occupants suffer
whiplash injury. A common result of such injury is chronic neck pain, often resulting in long-term
inability to work. The social costs of neck complaints in the European Union are estimated at between 5
and 10 billion euro a year (source: Victims and society: Achmea Foundation, 2001). The findings of TNO
(Netherlands Organisation for Applied Scientific Research) report 96.OR.BV.050.0/EJ (1996) indicated that
there was inadequate protection for both front and rear seat occupants in all the cars tested. More stringent
technical requirements for the manufacture of cars could do a great deal to prevent whiplash injury.

Is the Commission aware of the TNO report referred to above and, if so, how does it intend to use

1.
the findings in drafting legislation on road safety in the European Union?

Is the Commission prepared to take steps to reduce whiplash injury and, if so, what measures does it

2.
envisage taking and when?

Answer given by Mr Liikanen on behalf of the Commission

(21 March 2002)

The Commission is aware of the TNO report which was established at the demand of the Foundation

1.
Achmea in the Netherlands.

At the time of the report’s production, the Dutch government drew the attention of the Commission to the
need to improve the Community legislation in that respect. Consequently, Council Directive 74/408/EEC
of 22 July 1974 on the approximation of the laws of the Member States relating to the interior fittings of
motor vehicles (strength of seats and of their anchorages) (1) was substantially amended by Commission
Directive 96/37/EC of 17 June 1996 (2) in the particular context of head restraints. Two of the major
recommendations of the TNO report were thus taken into consideration.