Proposal for a Council Regulation extending the provisions of Regulation (EEC) No 1408/71 to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality (COM(2002) 59 final — 2002/0039(CNS))
Date: 2002-05-28
Institutions: European Commission
Subjects: family benefit, foreign national, social legislation, social-security benefit, social-security harmonisation, worker (EU)

C 126 E/388

EN

Official Journal of the European Communities

28.5.2002

Proposal for a Council Regulation extending the provisions of Regulation (EEC) No 1408/71 to
nationals of third countries who are not already covered by these provisions solely on the ground
of their nationality

(2002/C 126 E/15)

COM(2002) 59 final — 2002/0039(CNS)

(Submitted by the Commission on 6 February 2002)

THE COUNCIL OF THE EUROPEAN UNION,

the Charter of Fundamental Rights of
Union.

the European

Having regard to the Treaty establishing the European
Community and in particular Article 63(4) thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

the European Council proclaimed that

(1) As its special meeting in Tampere on 15 and 16 October
1999,
the
European Union should ensure fair treatment of third-
country nationals who reside legally on the territory of
its Member States, grant
them rights and obligations
comparable to those of EU citizens, enhance non-discrimi-
and
social
nation in economic,
approximate their legal status to that of Member States'
nationals.

and cultural

life

(2) In its resolution of 27 October 1999,

the European
Parliament called for prompt action on promises of fair
treatment for third-country nationals legally resident in
the Member States and on the definition of their legal
status,
including uniform rights as close as possible to
those enjoyed by the citizens of the European Union (1).

(3) The Economic and Social Committee has also appealed
for equal treatment of Community nationals and third-
field, notably in its
country nationals
opinion of 26 September 1991 on the status of migrant
workers from third countries (2).

in the social

the Union shall

(4) Article 6(2) of the Treaty on European Union provides
that
rights, as
respect
guaranteed by the European Convention on the Protection
of Human Rights and Fundamental Freedoms signed in
Rome on 4 November 1950 and as they result from
the constitutional
traditions common to the Member
States, as general principles of Community law.

fundamental

(5) This Regulation respects

rights and
observes the principles which are notably enshrined in

the fundamental

(1) OJ C 154, 5.6.2000, p. 63.
(2) OJ C 339, 31.12.1991, p. 82.

(6) The promotion of a high level of social protection and the
raising of the standard of living and quality of life in the
Member States are objectives of the Community.

(7) As regards the conditions of social protection of third-
country nationals, and in particular the social security
scheme applicable to them, the Employment and Social
Policy Council argued in its conclusions of 3 December
2001 that the coordination applicable to third-country
nationals should grant them a set of uniform rights as
near as possible to those enjoyed by EU citizens.

(8) Currently, 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, which is the basis for the coor-
dination of the social security schemes of the different
Member States, applies only to certain third country
nationals (3).
legal
instruments
by
nationals of third countries in connection with the coor-
dination of the Member States' social security schemes
give rise to legal and administrative complexities. They
create major
individuals
concerned, their employers, and the competent national
social security bodies.

The
governing

and
problems

encountered

difficulties

both for

diversity

number

the

of

(9) Hence, it is necessary to provide for the application of the
coordination rules of Regulation (EEC) No 1408/71 to
third-country
the
Community who are not currently covered by the
their
provisions of
nationality
conditions
and who satisfy
provided for in this Regulation.

this Regulation on grounds of

the other

nationals

resident

legally

in

(10) The application of Regulation (EEC) No 1408/71 to these
persons must not give them any entitlement to enter, to
stay or to reside in a Member State or to have access to its
labour market.

(3) 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,
p. 2. Regulation updated by Regulation (EC) No 118/97 (OJ L 28,
30.1.1997, p. 1) and last amended by Regulation (EC) No
1386/2001 of the European Parliament and of the Council of 5
June 2001 (OJ L 187, 10.7.2001, p. 1).

28.5.2002

EN

Official Journal of the European Communities

C 126 E/389

(11) Transitional provisions should be adopted to protect the
persons covered by this Regulation and to ensure that
they do not lose rights as a result of its entry into force.

(12) To achieve these objectives it is necessary and appropriate
to extend the scope of the rules coordinating the national
social security schemes by adopting a Community legal
instrument which is binding and directly applicable in
every Member State which adopts this Regulation.

the scale or effects of

(13) Since the objectives of the proposed action cannot be
sufficiently achieved by the Member States and can
the
therefore, by reason of
proposed action, be better achieved at Community level,
the Community may take measures in accordance with
the principles of subsidiarity enshrined in Article 5 of
the Treaty. In compliance with the principle of propor-
tionality as set out in said article, this Regulation does not
go beyond what is necessary to achieve these objectives,

HAS ADOPTED THIS REGULATION:

Article 1

The provisions of Regulation (EEC) No 1408/71 shall apply to
nationals of third countries who are not already covered by its
provisions solely on the ground of their nationality, provided
they are legally resident on the territory of a Member State and
move legally within the Community.

Article 2

Transitional rules

of

employment,

Any period of

insurance and, where appropriate, any
2.
period
residence
completed under the legislation of a Member State before . . .
shall be taken into account for the determination of rights
acquired in accordance with the provisions of this Regulation.

self-employment

or

Subject to the provisions of paragraph 1, a right shall be
to a

this Regulation even if

3.
acquired under
contingency arising prior to . . .

relates

it

4.
Any benefit that has not been awarded or that has been
suspended on account of the nationality or the residence of the
person concerned shall, at the latter's request, be awarded or
resumed from . . ., provided that the rights for which benefits
were previously awarded did not give rise to a lump-sum
payment.

The rights of persons who prior to . . ., obtained the
request,

5.
award of a pension may be reviewed at
account being taken of the provisions of this Regulation.

their

6.
If the request referred to in paragraph 4 or paragraph 5 is
lodged within two years from . . ., rights deriving from this
Regulation shall be acquired from that date and the provisions
of the legislation of any Member State on the forfeiture or
lapse of rights may not be applied to the persons concerned.

7.
If the request referred to in paragraph 4 or paragraph 5 is
lodged after expiry of the deadline referred to in paragraph 6,
rights not forfeited or lapsed shall be acquired from the date of
such request, subject to any more favourable provisions of the
legislation of any Member State.

Article 3

This Regulation shall enter into force on the first day of the
month following its publication in the Official Journal of the
European Communities.

This Regulation shall not create any rights in respect of

1.
the period before . . . (1).

This Regulation shall be binding in its entirety and directly
applicable in all Member States.

(1) Date of entry into force of the Regulation based on this proposal.