Amended proposal for a Regulation of the European Parliament and of the Council on coordination of social security systems (presented by the Commission pursuant to Article 250(2) of the EC Treaty)
Date: 2003-10-09
Institutions: European Commission
Subjects: European citizenship, European social area, social-security benefit, social-security harmonisation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 9.10.2003
COM(2003) 596 final

1998/0360 (COD)

Amended proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on coordination of social security systems

(presented by the Commission pursuant to Article 250(2) of the EC Treaty)

1998/0360 (COD)

Amended proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

on coordination of social security systems

1.

BACKGROUND

Regulation (EEC) No 1408/71 makes provision for the coordination of Member States'
social  security  schemes  in  order  to  protect  the  rights  of  persons  moving  within  the
European Union.

It has been amended many times since being adopted in 1971 in order to take account
of changes to national legislation, improve certain provisions, remedy deficiencies or
cover the situation of particular categories of persons. Furthermore, certain provisions
require  clarification  in  order  to  avoid  interpretation  problems,  as  evidenced  by  the
large  number  of  judgments  on  coordination  issues  delivered  by  the  Court  of  Justice.
The  goal  pursued  by  coordination  must  also  be  adapted  to  changes  in  the  European
Union as a whole. Coordination rules are not just intended to ensure free movement for
employed persons; they are also increasingly about protecting the social security rights
of all persons moving within the European Union. Coordination must therefore be seen
from the perspective of European citizenship and the building of a Social Europe.

On  21  December  1998  the  Commission  therefore  presented  a  proposal  for  a
Regulation to simplify and modernise the coordination rules contained in Regulation
(EEC) No 1408/71.

At its plenary part-session of 3 September 2003, the European Parliament adopted 47
amendments to the Commission's proposal.

2.

EXAMINATION OF AMENDMENTS

The Commission agrees to incorporate amendments 3–10, 12–19, 21–26, 28–32, 34,
35, 37, 39, 46–48, 50 and 52–56 into its amended proposal as they stand. It can accept
amendment 11 in part. It can also accept combined amendments 51 and 44 in part. It
cannot accept amendments 38, 40, 45 and 49.

2.1.

Amendments accepted by the Commission

2.1.1.

Amendment 3

The amendment limits the scope of the  Regulation, in terms of persons covered, to
nationals  of  EU  Member  States,  stateless  persons  and  refugees.  In  view  of  the

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adoption on 14 May 2003 of the Regulation extending the provisions of Regulation
(EEC) No 1408/71 to nationals of third countries1, the amendment is acceptable.

2.1.2.

Amendments 4 and 32

The purpose of these amendments is to include paternity benefits in the scope of the
Regulation. As this constitutes modernisation, the amendments are acceptable.

2.1.3.

Amendment 5

The  amendment  removes  the  condition  regarding  residence  in  the  territory  of  a
Member State, which is currently required for the provision on equal treatment to be
applied. It thus allows application of the provision on equal treatment to be extended
and is therefore acceptable.

2.1.4.

Amendments 6–8, 24–26, 28–30, 37 and 39

These amendments make the Commission's proposal clearer and more precise. They
are therefore acceptable to the Commission.

2.1.5.

Amendments 9 and 10

These amendments flesh out the conditions for maintaining conventions entered into
prior  to  the  entry  into  force  of  the  Regulation  and  for  allowing  Member  States  to
conclude conventions with each other. They are acceptable to the Commission.

2.1.6.

Amendment 12

Amendment  12  adds  a  provision  to  limit  the  combination  of  benefits  of  the  same
kind for one and the same insurance period. It is acceptable, as it restricts the undue
granting of benefits.

2.1.7.

Amendments 13–19 and 21–23

The  purpose  of  these  amendments  is  to  clarify  various  definitions,  add  new
definitions  that  are  needed,  and  remove  a  number  of  superfluous  definitions.  They
are therefore acceptable to the Commission.

2.1.8.

Amendment 31

Amendment  31  deletes  the  derogations  concerning  the  legislation  applicable  to
personnel  employed  by  diplomatic  missions  and  consular  posts.  It  is  acceptable  in
that it serves the purpose of simplification, in other words the removal of derogations
for specific categories of insured persons.

2.1.9.

Amendments 34 and 35

The purpose of amendment 34 is to entitle persons staying in a Member State other
than  the  competent  State  to  benefits  in  kind  which  become  medically  necessary
(without  constituting  an  emergency).  This  amendment  is  favourable  to  insured
persons, as it removes the requirement that benefits in kind are to be provided during

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Council Regulation (EC) No 859/2003 of 14 May 2003 (OJ L 124, 20.5.2003).

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a stay in another Member State only in an emergency. For this reason it is acceptable
to the Commission. Amendment 35 is also acceptable as it repeals a provision which
amendment 34 renders superfluous.

2.1.10. Amendment 46

Amendment 46 adds a recital emphasising the need to provide for coordinating rules
for contractual provisions which complement or replace social security legislation in
order  to  allow  aggregation  of  periods  of  insurance  and  the  waiving  of  residence
clauses. The addition of such a recital is acceptable to the Commission.

2.1.11. Amendment 47

Amendment 47 emphasises the fact that the principle of equal treatment is of particular
importance  for  frontier  workers,  who  reside  in  a  Member  State  other  than  the
competent State. It is therefore acceptable to the Commission.

2.1.12. Amendment 48

The purpose of amendment 48 is to add a recital on the need for greater convergence
between  the  coordination  of  social  security  schemes  and  certain  rules  contained  in
agreements on double taxation. It is acceptable to the Commission.

2.1.13. Amendment 50

The Commission can accept amendment 50, which entitles the members of a frontier
worker’s family to benefits in kind in the competent State.

2.1.14. Amendment 52

The purpose of amendment 52 is to ensure that Member States' institutions cooperate
in  order  to  find  solutions  to  problems  affecting  a  person  or  group  of  persons  which
derive from the  application of the Regulation. This amendment respects the limits in
terms of the coordination of social security schemes and is therefore acceptable to the
Commission.

2.1.15. Amendment 53

Amendment 53 reflects Court of Justice case law2. On the one hand, it is consistent
with  the  Court's  interpretation  that  direct  assumption  by  the  competent  insurance
institution of the cost of out-patient treatment provided in a Member State other than
that in which a person is insured should not be subject to prior authorisation. On the
other hand, the Court has ruled that prior  authorisation  may  be imposed, subject to
certain conditions, for in-patient treatment. The amendment also requires the patient's
medical condition to be taken into account when deciding whether or not to authorise
travel to another Member State to receive treatment. It is therefore acceptable to the
Commission.

2

Judgment  of  12  July  2001,  C-157/99  (Smits  and  Peerbooms);  judgment  of  13  May  2003,  C-385/99
(Müller-Fauré/Van Riet).

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2.1.16. Amendment 54

Amendment  54  means  that  retired  frontier  workers  can  obtain  health  care  in  their
Member  State  of  residence  or  in  the  Member  State  where  they  were  last  employed.
The  Commission  can  accept  this  amendment,  as  it  improves  the  rights  of  retired
frontier workers.

2.1.17. Amendment 55

Amendment 55 introduces a more complete definition of special non-contributory cash
benefits,  taking  account  of  Court  of  Justice  case  law  adopted  since  the  Commission
presented  its  initial  proposal.  It  clarifies  the  conditions  which  benefits  must  meet  in
order  to  be  declared  non-exportable.  The  amendment  is  also  consistent  with  the
Commission's  proposal  tabled  on  31 July  2003  concerning  the  list  of  special  non-
contributory cash benefits. It is therefore fully acceptable to the Commission.

2.1.18. Amendment 56

The  Commission's  proposal  is  that  unemployed  frontier  workers  should  receive
unemployment benefits from the State where they were last employed rather than, as at
present,  their  State  of  residence.  Luxembourg  has  a  very  large  number  of  frontier
workers who live in Belgium, Germany or France. A sudden change to the present rule
could have substantial financial consequences for Luxembourg. The introduction of a
transitional period for Luxembourg, as proposed in this amendment, is therefore very
reasonable.

2.2.

Amendments which the Commission can accept in part

2.2.1.

Amendment 11

The Commission can partly accept amendment 11, which  requires Member  States to
make  a  number  of  declarations  relating  to  the  scope  of  the  Regulation.  The
Commission can accept the spirit of this  amendment, although it would appear to be
too inflexible  in  that  it  obliges  Member  States  to  make  declarations  by  a  fixed  date.
The Commission can therefore accept the first paragraph of the amendment, together
with  a  second  paragraph  reading:  "These  notifications  shall  be  forwarded  to  the
Commission on an annual basis, and their  contents shall  be published in the  Official
Journal of the European Union".

2.2.2.

Amendments 51 and 44

The  purpose  of  combined  amendments  51  and  44  is  to  delegate  additional  tasks  in
terms  of  coordination  of  social  security  systems  to  the  Administrative  Commission.
The  Commission  cannot  accept  this  amendment  in  as  far  as  it  requires  the
Administrative Commission to draw up  proposals to the Member States (point bc of
the  amendment).  This  task  would  be  outside  the  scope  of  coordination  of  social
security systems. Furthermore, the purpose of this amendment (to take account of the
special situation of frontier workers) is already covered by the other two points of the
amendment  (ba and bb),  which  are  acceptable  to  the  Commission  since  they  respect
the coordination limits.

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2.3.

Amendments which the Commission cannot accept

2.3.1.

Amendments 38 and 40

According to amendments 38 and 40, in order to be eligible for cash benefits, frontier
workers must submit to examination and reintegration measures in accordance with
the legislation of the competent State.

The Commission could accept the spirit of these amendments, but their place would
be in an implementing regulation rather than here. The Commission therefore cannot
accept them as they stand.

2.3.2

Amendment 45

Amendment 45 obliges institutions to exchange information on proposed changes to
legislation,  including  taxation  legislation.  The  Commission  cannot  accept  this
amendment, which goes beyond the scope of coordination.

2.3.3.

Amendment 49

The purpose of amendment 49 is to add a recital stipulating that when the Member
State of employment  applies  its  legislation it must do so in  full respect  and mutual
recognition  of  relevant  regulations  in  the  worker's  Member  State  of  origin.  The
explanation  of  the  amendment  also  states  that  it  refers  in  particular  to  family  law.
The  Commission  cannot  accept  this  amendment,  as  it  goes  beyond  the  scope  of
coordination of social security systems.

3.

CONCLUSION

Pursuant to Article 250(2) of the EC Treaty, the Commission amends its proposal for
a Regulation as outlined above.

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