Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the ground of their nationality
Date: 2003-05-14
Institutions: Council of the European Union
Subjects: Austria, EU Member State, Germany, equal treatment, family benefit, foreign national, residence, social-security benefit

20.5.2003

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Official Journal of the European Union

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I

(Acts whose publication is obligatory)

COUNCIL REGULATION (EC) No 859/2003

of 14 May 2003

extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to
nationals of third countries who are not already covered by those provisions solely on the ground
of their nationality

THE COUNCIL OF THE EUROPEAN UNION,

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

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

Whereas:

(1)

(2)

(3)

(4)

the European Council proclaimed that

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 in the territory of
its Member States, grant them rights and obligations
comparable to those of EU citizens, enhance non-discri-
mination in economic,
life and
approximate their legal status to that of Member States'
nationals.

social and cultural

In its resolution of 27 October 1999 (3), 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.

The European Economic and Social Committee has also
appealed for equal treatment of Community nationals
and third-country nationals in the social field, notably in
its opinion of 26 September 1991 on the status of
migrant workers from third countries (4).

Article 6(2) of the Treaty on European Union provides
that the Union shall respect fundamental rights, as guar-
anteed by the European Convention on the Protection of
Human Rights and Fundamental Freedoms signed in

(5)

(6)

(7)

(8)

Rome on 4 November 1950 and as they result from the
constitutional traditions common to the Member States,
as general principles of Community law.

This Regulation respects the fundamental rights and
observes the principles recognised in particular by the
Charter of Fundamental Rights of the European Union,
in particular the spirit of its Article 34(2).

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.

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.

the social security schemes of

Currently, 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 (5), which is the basis for the coordina-
tion of
the different
Member States, and Council Regulation (EEC) No 574/
72 of 21 March 1972, laying down the procedure for
implementing Regulation (EEC) No 1408/71 (6), apply
only to certain third-country nationals. The number and
diversity of legal instruments used in an effort to resolve
problems in connection with the coordination of the
Member States' social security schemes encountered by
nationals of third countries who are in the same situa-
tion as Community nationals give rise to legal and
administrative complexities. They create major difficul-
ties for the individuals concerned, their employers, and
the competent national social security bodies.

(1) OJ C 126 E, 28.5.2002, p. 388.
(2) Opinion of 21 November 2002 (not yet published in the Official

Journal).

(3) OJ C 154, 5.6.2000, p. 63.
(4) OJ C 339, 31.12.1991, p. 82.

(5) OJ L 149, 5.7.1971, p. 2; Regulation last amended by Regulation
(EC) No 1386/2001 of the European Parliament and of the Council
(OJ L 187, 10.7.2001, p. 1).

(6) OJ L 74, 27.3.1972, p. 1; Regulation last amended by Commission

Regulation (EC) No 410/2002 (OJ L 62, 5.3.2002, p. 17).

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(9)

(10)

(11)

(12)

(13)

(14)

(15)

Hence, it is necessary to provide for the application of
the coordination rules of Regulation (EEC) No 1408/71
and Regulation (EEC) No 574/72 to third-country
nationals legally resident in the Community who are not
currently covered by the provisions of these Regulations
on grounds of their nationality and who satisfy the other
conditions provided for in this Regulation; such an
extension is in particular important with a view to the
forthcoming enlargement of the European Union.

The application of Regulation (EEC) No 1408/71 and
Regulation (EEC) No 574/72 to these persons does not
give them any entitlement to enter, to stay or to reside
in a Member State or to have access to its labour
market.

The provisions of Regulation (EEC) No 1408/71 and
Regulation (EEC) No 574/72 are, by virtue of this Regu-
lation, applicable only in so far as the person concerned
is already legally resident in the territory of a Member
State. Being legally resident is therefore a prerequisite for
the application of these provisions.

The provisions of Regulation (EEC) No 1408/71 and
Regulation (EEC) No 574/72 are not applicable in a
situation which is confined in all respects within a single
Member State. This concerns, inter alia, the situation of a
third country national who has links only with a third
country and a single Member State.

The continued right to unemployment benefit, as laid
down in Article 69 of Regulation (EEC) No 1408/71, is
subject to the condition of registering as a job-seeker
with the employment services of each Member State
entered. Those provisions may therefore apply to a
third-country national only provided he/she has the
right, where appropriate pursuant to his/her residence
permit, to register as a job-seeker with the employment
services of the Member State entered and the right to
work there legally.

proposed action, be better achieved at Community level,
the Community may take measures in accordance with
the principle of subsidiarity enshrined in Article 5 of the
Treaty. In compliance with the principle of proportion-
ality as set out in that Article, this Regulation does not
go beyond what is necessary to achieve these objectives.

In accordance with Article 3 of the Protocol on the posi-
tion of the United Kingdom and Ireland annexed to the
Treaty on the European Union and to the Treaty estab-
lishing the European Community, Ireland and the United
Kingdom gave notice, by letters of 19 and 23 April
2002, of their wish to take part in the adoption and
application of this Regulation.

In accordance with Articles 1 and 2 of the Protocol on
the position of Denmark annexed to the Treaty on the
European Union and to the Treaty establishing the
European Community, Denmark is not taking part in
the adoption of this Regulation and is not therefore
bound by or subject to it,

(18)

(19)

HAS ADOPTED THIS REGULATION:

Article 1

Subject to the provisions of the Annex to this Regulation, the
provisions of Regulation (EEC) No 1408/71 and Regulation
(EEC) No 574/72 shall apply to nationals of third countries
who are not already covered by those provisions solely on the
ground of their nationality, as well as to members of their
families and to their survivors, provided they are legally resi-
dent in the territory of a Member State and are in a situation
which is not confined in all respects within a single Member
State.

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.

This Regulation shall not create any rights in respect of

1.
the period before 1 June 2003.

Article 2

To achieve these objectives it is necessary and appro-
priate to extend the scope of the rules coordinating the
national social security schemes by adopting a Commu-
nity legal
instrument which is binding and directly
applicable in every Member State which takes part in the
adoption of this Regulation.

of

employment,

Any period of

insurance and, where appropriate, any
2.
period
residence
completed under the legislation of a Member State before 1
June 2003 shall be taken into account for the determination of
rights acquired in accordance with the provisions of this Regu-
lation.

self-employment

or

(16)

This Regulation is without prejudice to rights and obli-
gations arising from international agreements with third
countries to which the Community is a party and which
afford advantages in terms of social security.

(17)

Since the objectives of the proposed action cannot be
sufficiently achieved by the Member States and can
the
therefore, by reason of

the scale or effects of

3.
Subject to the provisions of paragraph 1, a right shall be
acquired under this Regulation even if it relates to a contin-
gency arising prior to 1 June 2003.

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 1 June 2003, provided that the rights for which
benefits were previously awarded did not give rise to a lump-
sum payment.

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The rights of persons who prior to 1 June 2003, obtained
5.
the award of a pension may be reviewed at their request,
account being taken of the provisions of this Regulation.

If the request referred to in paragraph 4 or paragraph 5 is
6.
lodged within two years from 1 June 2003, rights deriving
from this Regulation shall be acquired from that date and the
provisions of the legislation of any Member State on the forfei-
ture or lapse of rights may not be applied to the persons
concerned.

If the request referred to in paragraph 4 or paragraph 5 is
7.
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 Union.

This Regulation shall be binding in its entirety and directly applicable in the Member States in
accordance with the Treaty establishing the European Community.

Done at Brussels, 14 May 2003.

For the Council

The President

A.-A. TSOCHATZOPOULOS

ANNEX

SPECIAL PROVISIONS REFERRED TO IN ARTICLE 1

I. GERMANY

In the case of family benefits, this Regulation shall apply only to third-country nationals who are in possession of a
residence permit meeting the definition in German law of the ‘Aufenthaltserlaubnis’ or ‘Aufenthaltsberechtigung’.

II. AUSTRIA

In the case of family benefits, this Regulation shall apply only to third-country nationals who fulfil the conditions laid
down by Austrian legislation for permanent entitlement to family allowances.