WRITTEN QUESTION E-2017/02 by Ieke van den Burg (PSE) and Anne Van Lancker (PSE) to the Commission. Application of Regulation 1612/68 in the case of top-up payments to an unemployed cross-border worker.
Date: 2002-07-09
Institutions: European Parliament, Provisional data
Subjects: Belgium, European social policy, Netherlands, equal treatment, frontier worker, severance pay, unemployment insurance

5.12.2002

EN

Official Journal of the European Communities

C 301 E/257

Answer given by Mrs de Palacio on behalf of the Commission

(29 July 2002)

The assessment of the technical, legal and administrative resources for the safe management of radioactive
wastes in a State of destination of a shipment of radioactive waste is undertaken by the competent
authorities in the State of origin. This would normally be done by comparing the level of the resources in
the State of destination with those in force in the State of origin.

Concerning Council Directive 92/3/Euratom, of 3 February 1992 on the supervision and control of
shipments of radioactive waste between Member States and into and out of the Community radioactive
waste is defined as being ‘waste’ for ‘any material which contains or is contaminated by radionuclides and
for which no use is foreseen’. Considering this definition, only those shipments of spent fuel for disposal
would fall within the scope of the Directive. In the past, there have been no shipments of spent fuel to
third countries for disposal.

The Commission is not aware of any conflicting interpretation about the assessment of the resources by
that different
the Member States when authorising shipments of radioactive waste.
interpretations appeared possible, the Commission would establish the criteria referred to in Article 11 of
Council Directive 92/3/Euratom for these assessments with the assistance of an advisory Committee
composed of representatives from Member States (Articles 19 and 20 of Directive 92/3/Euratom).

In the event

There will be a similar assessment carried out by Contracting Parties to the Joint Convention on the safety
of spent fuel management and the safely radioactive waste management before any spent fuel shipments
are made. However, under the Joint Convention both the State of origin and the State of destination must
undertake the assessment before authorising a shipment.

The issue of the import of spent nuclear fuel from the Community to the Russian Federation was not
raised by Nuclear Energy Minister Rumyantctev during his recent meeting with the Vice-President of the
Commission responsible for Transport and Energy.

(2002/C 301 E/277)

WRITTEN QUESTION E-2017/02

by Ieke van den Burg (PSE) and Anne Van Lancker (PSE) to the Commission

(9 July 2002)

Subject: Application of Regulation 1612/68 in the case of top-up payments to an unemployed cross-border

worker

Is the Commission aware of the judgment of 21 March 2002 delivered by the court in s’ Hertogenbosch in
the case of Rita Lemmens-Lenaerts (Case 197850)? Ms Lemmens-Lenaerts lives in Belgium and was
employed as a cross-border worker in the Netherlands. She lost her job and, under Regulation (EEC)
1408/71 (1),
is entitled to Belgian unemployment benefit. On the basis of a collective employment
agreement (CEA) arrangement whereby the unemployment benefit is topped up to a percentage of the last
gross salary payment, her former employer makes a supplementary payment, but bases it on a notional
benefit paid in the Netherlands. Since the Belgian benefit is lower than the Netherlands one, there is a
difference between her income and that of unemployed colleagues living in the Netherlands.

Does the Commission also take the view that the question here is whether the CEA entitlement formulated
as a percentage of gross salary (being a social benefit pursuant to Article 7(2) and (4) of Regulation (EEC)
1612/68 (2)) must result in the same level of (gross) income for an unemployed border worker receiving a
benefit that must be paid in the country of residence (pursuant to Article 71(1)(a)(ii) of Regulation (EEC)
1408/71) as for colleagues resident in the country of employment?

Does the Commission not take the view that the Netherlands judge should also have referred to the case-
law relating to Regulations 1408/71 and 1612/68, namely the Meints judgment (C-57/96) and the
‘pension rights’ judgment (Commission/France C-35/97)?

C 301 E/258

Official Journal of the European Communities

EN

5.12.2002

What is the Commission’s view on the possibility of finding a solution, when the planned revision of
Regulation (EEC) 1408/71 takes place, to the above problem of unemployment benefit paid compulsorily
in the country of residence and top-up payments related to benefits in the country of employment when
cross-border workers are made redundant?

(1) OJ L 149, 5.7.1971, p. 2.
(2) OJ L 257, 19.10.1968, p. 2.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 August 2002)

The Commission confirms that it has noted the national court’s judgment to which the Honourable
Members refer. According to the information available to the Commission, the dispute concerns the
calculation of an unemployment benefit supplement payable by the former employer established in the
Netherlands, under a collective employment agreement, to an employee he has made redundant. The
agreement in question apparently guarantees the payment by the employer of a supplement up to a certain
percentage of the last gross salary.

The Commission feels that
this advantage comes under the scope of Article 7 of Regulation (EEC)
No 1612/68 (1), which guarantees migrant workers the same rights and advantages as national workers, as
Justice in its judgments in the Meints (C-57/96) (2), Commission/France
confirmed by the Court of
(C-35/97) (3) and Schöning-Kougebetopoulou (C-15/96) (4) cases.

However, the wording of the collective agreement in question would not appear to provide for migrant
workers, especially frontier workers, to be treated differently from national workers. Payment of the
supplement should guarantee all workers a certain percentage of their last gross salary.

On the other hand, the fact that in practice this supplement is calculated solely on the assumption that the
person concerned receives the amount of unemployment benefit stipulated by Netherlands law does not
seem to be compatible with Community law, especially Regulation (EEC) No 1612/68. Under
Article 71(1)(a)(ii) of Regulation (EEC) No 1408/71 (5), a frontier worker who is wholly unemployed is
entitled to benefits in accordance with the provisions of the legislation of the Member State in whose
territory he resides. This amount may differ from the amount provided for by the legislation of the former
State of employment.

The Commission therefore feels that in calculating this supplement the former employer must consider the
actual level of unemployment benefits received by the person concerned, particularly with reference to the
provisions of Regulation (EEC) No 1408/71, with a view to effectively guaranteeing him or her payment of
a supplement up to a certain percentage of the last gross salary.

In its proposal for a revision of Regulation (EEC) No 1408/71 (6), the Commission has proposed that
frontier workers who become unemployed should be entitled to unemployment benefits in accordance
with the legislation of the Member State in which they were last employed. Adoption of this proposal
would simplify the application of the collective agreement in question, as unemployed frontier workers
would receive the same benefits as those who had been working in their own country.

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

Community, OJ L 257, 19.10.1968.
Judgment of 27 November 1997, ECR 1997, I-6689.
Judgment of 24 September 1998, ECR 1998, I-5325.
Judgment of 15 January 1998, ECR 1998, I-47.

(2)
(3)
(4)
(5) 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 updated by
Regulation (EC) No 118/97, OJ L 28, 30.1.1997.

(6) OJ C 38, 12.2.1999.