WRITTEN QUESTION E-3676/02 by Toine Manders (ELDR) to the Commission. Incapacity for work.
Date: 2002-12-18
Institutions: European Parliament, Provisional data
Subjects: Germany, Netherlands, case-law (EU), frontier worker, incapacity for work, interpretation of the law, social security legislation, social-security harmonisation, unemployment insurance

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established selection criteria which apply to individual consortium partners and not to the consortium as a
whole. Consequently, a reminder was circulated in March 2002 that selection criteria must apply to
consortia as a whole. The situation should have been corrected since then but any SME which comes
across overly restrictive selection criteria should complain to the contracting authority responsible.

The Commission has addressed the problem (see, for example, the 2nd report of the Committee of
Independent Experts in 1999) of assessing the solvency of potential contractors before awarding contracts
to them. Consequently, in order to protect the financial interests of the Community, the Practical Guide
procedures oblige contracting authorities to publish financial criteria in their procurement notices.
Similarly, the requirement to provide financial guarantees for larger amounts derives from the principle of
sound financial management. Faced with these requirements, the small enterprise has also the possibility of
sharing this cost with others, being part of a consortium.

The documents which tenderers need to provide are now more clearly specified in the Financial Regulation
adopted by the Council on 25 June 2002 (2). The Commission is also contacting the national authorities of
the Member States to establish an up-to-date list of the authorities and organisations which are able to
provide the necessary certificates for entities based in these countries. The Practical Guide is currently
being revised in order to take these changes into account. The standard application form for service
contracts is also being revised to ensure that overall data are provided for the consortium as a whole, as
well as for each individual consortium partner. At the same time, additional guidance will be issued
concerning the setting of selection criteria, such as basing the annual turnover criterion on the average
annual contract budget, rather than on the total contract budget.

Concerning the extent to which tender documents contain details of the requirements, all tenderers have
the opportunity to seek clarifications from the contracting authority, especially if the terms of reference or
technical specifications are unclear.

Concerning the availability of
information or justification for rejections the Practical Guide already
contains standard letters to unsuccessful applicants and tenderers which require comparative information
to be provided in order to allow them to assess their own competitiveness retrospectively. For example, for
service contracts, the letter to unsuccessful tenderers includes a detailed breakdown of the scores obtained
both the addressee and the successful tenderer.

(1) http://europa.eu.int/comm/europeaid/tender/gestion/index_en.htm.
(2) Council Regulation (EC, Euratom) No 1605/2002 of 25 June 2002 on the Financial Regulation applicable to the

general budget of the European Communities, OJ L 248, 16.9.2002.

(2004/C 88 E/0308)

WRITTEN QUESTION E-3676/02

by Toine Manders (ELDR) to the Commission

(18 December 2002)

Subject: Incapacity for work

A cross-border worker previously employed under an insurance system with benefits not based on the
insured period (the Netherlands) and last employed subsequently under an insurance system with benefits
that are insured-period-based (Germany) who becomes incapable of working is entitled, in principle, to
Dutch and German disability benefit on a pro rata basis. The lack of harmonisation means that a cross-
border worker may be declared completely unfit for work under Dutch law and completely fit for work
under German law. Often (cid:1) because they may have been covered for only a few years by an insurance
system with benefits not based on the insured period (the Netherlands) (cid:1) such cross-border workers will
receive a small amount, on a pro rata basis, by way of disability benefit from the Netherlands (and no such
benefit from Germany).

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Where there is no longer a German employment contract, the question is which Member State is required
to pay unemployment benefit. The country of residence (the Netherlands) will refuse to pay unemployment
benefit because the person concerned is completely unfit for work. The question is whether there is an
entitlement to German unemployment benefit.

1.
Are cross-border workers resident in the Netherlands and declared completely unfit for work under
Dutch law entitled to German unemployment benefit if they last worked in Germany and are not entitled
to German disability benefit because, under German law, they are fit for work?

On what articles of Regulation (EEC) No 1408/71 (1) or, as the case may be, case law (Miethe, C-1/

2.
85) is this based?

Can the competent German authority (employment office) stipulate that,

in order to qualify for
3.
in the Netherlands who becomes
German unemployment benefit, a cross-border worker
unemployed because his or her employment
insurance
contributions in Germany for more than 50 % of the total period in which he or she has been in
employment?

in Germany ends must have paid national

resident

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

Answer given by Mrs Diamantopoulou on behalf of the Commission

(27 January 2003)

The Commission wishes to inform the Honourable Member that Regulation (EEC) No 1408/71 (1)
determines the Member State where an unemployed worker may request unemployment benefits: an
unemployed worker who, during his last employment, did not reside in the Member State where he
worked, shall receive unemployment benefits in accordance with the legislation of the Member State of
residence according to Article 71 (1) (a) if he was a frontier worker (cid:1) i.e. a worker who resides in one and
works in another Member State and who returns to the Member State of residence regularly, but at least
once a week. If he was a ‘person other than a frontier worker’ he has, according to Article 71 (1) (b), an
option regarding the payment of unemployment benefits according to the legislation of the State of
residence or according to the legislation of the State of last employment if he makes himself available for
work to the employment service of either State.

Furthermore, the European Court of Justice in the case C-1/85 Miethe held that an ‘atypical frontier
worker’ (cid:1) i.e. a frontier worker who has exceptionally maintained personal and professional ties in the
State of employment so that it is there that he has the best prospects of finding another job (cid:1) must be
regarded as a ‘person other than a frontier worker’ coming under the scope of Article 71 (1) (b). However,
it is solely a matter for the national court to determine in an individual case whether a worker who resides
in a State other than the State of employment has, nevertheless, maintained his best prospects of finding
another job in that State and ought therefore to come under the scope of Article 71 (1) (b).

Therefore, the person referred to by the Honourable Member may request unemployment benefits under
German legislation according to Article 71 (1) (b) either if he can be considered an ‘atypical frontier
worker’ according to the ruling of the European Court of Justice in the Miethe case, or if he was a ‘person
other than a frontier worker’. The fact that he receives a Dutch invalidity pension has no impact on this
principal determination of Germany as the Member State competent for paying unemployment benefits.

However, whether the person will actually be entitled to receive German unemployment benefits depends
upon him fulfilling the conditions stipulated by German legislation for receiving unemployment benefits.
As Community law does not harmonise the social security schemes of Member States, but coordinates
them, each Member State is competent to determine the conditions for receiving benefits. If, however, a

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legislation requires completion of a certain insurance period before opening entitlement to a
national
benefit (waiting period), and if a migrant worker has not been insured long enough under the legislation of
this Member State to fulfill the waiting period, Regulation (EEC) No 1408/71 stipulates that insurance
periods completed under the legislation of any other Member State must be taken into consideration as if
they had been completed in the said Member State.

(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, Regulation updated by Council Regulation (EC) No 118/
97 of 2 December 1996 (OJ L 28, 30.1.1997).

(2004/C 88 E/0309)

WRITTEN QUESTION E-3737/02

by Ilda Figueiredo (GUE/NGL) to the Commission

(19 December 2002)

Subject:

‘ABEJ (cid:1) Solidarités’

’ABEJ (cid:1) Solidarités’, based in Lille (France), is an association which performs important work with street
children. Its work, however, is now being put at risk thanks to a 55 % cut in the health budget for 2003.

Between 700 and 800 recipients of help at street level could be affected by this, with the consequent
worsening of social exclusion.

Can the Commission explain the reasons for the reduction in support to associations of this kind, and state
what measures it intends to take to prevent social exclusion from becoming worse?

Answer given by Mrs Diamantopoulou on behalf of the Commission

(30 January 2003)

The Commission has no information concerning the reduction of the aid granted to the French association
‘ABEJ (cid:1) Solidarités’. The amount of this aid is determined solely by the French Government when
adopting the national annual budget.

An analysis of the efforts made by the governments of the Member States to combat poverty and social
exclusion is to be conducted by the Commission, in partnership with the Member States, when the second
series of national action plans to combat poverty and social exclusion is presented in July 2003. The
results of this analysis will be given in the second joint report on social inclusion, to be submitted to the
European Council in spring 2004.

(2004/C 88 E/0310)

WRITTEN QUESTION E-3780/02

by Kathleen Van Brempt (PSE) to the Commission

(6 January 2003)

Subject: Implementation of Regulation (EC) No 1259/1999: reports by the Member States concerning

environmental measures and aid schemes in agriculture

Regulation (EC) No 1259/1999 (1) and Implementing Regulation (EC) No 963/2001 (2) lay down common
rules relating to the aid scheme under the common agricultural policy, with, in particular, the receipt of
aid being made conditional upon environmental protection measures being taken. In this instance, Member