Opinion of the European Economic and Social Committee on the  Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (COM(2004) 830 final — COD 2004/0284)
Date: 2005-09-28
Institutions: European Economic and Social Committee
Subjects: free movement of workers, simplification of formalities, social security, social-security benefit, social-security harmonisation, worker (EU)

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Official Journal of the European Union

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Opinion of the European Economic and Social Committee on the ‘Proposal for a Regulation of the
European Parliament and of the Council amending Council Regulation (EEC) No 1408/71 on the
application of social security schemes to employed persons, to self-employed persons and to
members of their families moving within the Community and Council Regulation (EEC) No 574/72
laying down the procedure for implementing Regulation (EEC) No 1408/71’

(COM(2004) 830 final — COD 2004/0284)

(2006/C 24/09)

On 14 January 2005, the Council decided to consult the European Economic and Social Committee, under
Article 251 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for the Committee's
work on the subject, adopted its opinion on 5 September 2005 (Rapporteur: Mr Rodríguez García-Caro).

At its 420th plenary session held on 28 and 29 September 2005 (meeting of 28 September), the European
Economic and Social Committee adopted the following opinion with 171 votes in favour and four absten-
tions.

1. Introduction

1.1
Since their adoption, Regulations Nos. 1408/71 and
574/72 on the application of social security schemes to
employed persons, to self-employed persons and to members
of their families moving within the Community have been
successively amended to accommodate the changes that these
schemes and the benefits they provide have undergone in the
course of time.

1.2
These changes basically consist of bringing the Regula-
tions into line with the legislative amendments that have been
made in the Member States and adapting them to the succes-
sive rulings of the European Court of Justice. Consequently, the
proposed Regulation now submitted for
the Committee's
consideration aims to reflect the changes that have taken place
in national legislation, principally in the new Member States,
and to complete the simplification of procedures on receiving
medical treatment abroad, extending this modification to the
procedures regarding benefits for eventualities arising from
accidents at work and occupational diseases.

1.3
The last modification made to the two Regulations was
produced by Regulation 631/2004 (1), which introduced the
aforementioned changes
receiving
medical treatment in another Member State. The Committee
delivered an opinion (2) on the regulation at the draft stage.

to the procedures

for

1.4
Nevertheless, the most substantial change to the coordi-
nation of social security schemes in the EU Member States was
made by Regulation 883/2004 (3) of the European Parliament
and of the Council which, after six years of discussion in the
Union's institutions, has been adopted and published in the
the European Union. This Regulation,
Official

Journal of

(1) OJ L 100, 6.4.2004.
(2) EESC Opinion on the Proposal for a Council Regulation (EC) on Coordi-
nation of Social Security Systems (Rapporteur: Mr Rodríguez García-
Caro – OJ C 75, 15.3.2000).

(3) OJ L 166, 30.4.2004.

replacing Regulation No 1408/71, has not yet entered into
force, pending adoption of its Implementing Regulation, which
will in turn replace the current Regulation No 574/72.

The EESC delivered an opinion (4) on the proposal for a Regu-
lation on the coordination of social security schemes when it
was presented by the Commission.

2. Content of the proposal

2.1
The proposal presents modifications to two Regulations,
firstly Regulation No 1408/71 and secondly Regulation No
the
574/72 establishing the implementing procedures of
former. The two sets of amendments are not related to one
another, because they arise from different
legal aspects, as
stated in point 1.2 of this Opinion.

2.1.1
As regards Regulation No 1408/71, modifications are
made to several of its annexes. These address particular situa-
tions in the different Member States, which must be referred to
specifically in these annexes if the citizens of those countries
are to benefit accordingly.

As regards Regulation No 574/72, the modifications
2.1.2
simplify the text and reduce the current administrative burden
when healthcare is received for accidents at work or occupa-
tional diseases in another Member State, applying the same
criteria for simplifying procedures for receiving general health-
care as set out in Regulation No 631/2004.

(4) EESC Opinion on the Proposal for a Regulation of the European Parlia-
the Council amending Council Regulation (EEC) No
ment and of
1408/71 on the application of social
to employed
persons, self-employed persons and their families moving within the Com-
munity, and Council Regulation (EEC) No 574/72 fixing the procedure
for implementing Regulation (EEC) No 1408/71, in respect of the align-
ment of rights and the simplification of procedures (Rapporteur: Mr
Boldt – OJ C 32, 5.2.2004).

security schemes

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3. General comments

that

this pursues

The Committee welcomes the content of the proposal
3.1
because it considers
the approach of
improving and simplifying the procedures aimed at better coor-
dination of social security schemes in the European Union. Any
change that benefits EU citizens and improves their relationship
with the public authorities in the Member States will always be
welcomed by this Committee.

3.2 We also welcome the proposed regulation because it
specifically promotes one of the four freedoms on which the
European Union was originally founded — the free movement
of workers and now, and by extension of this right, the free
those persons affected by these rules. The
movement of
Committee must
for the various
therefore once again call
Union and Member State bodies to move ahead with elimi-
nating all existing obstacles, in order to create both a genuine
area of free movement for persons within the Union's borders,
and a real social right. We welcome the content of
the
proposal, because it constitutes a new means of promoting a
fundamental right, which applies to all citizens.

its

The co-decision procedure, because of

lengthy
3.3
nature, may result in significant changes to the content of the
proposals. In an earlier Committee opinion (5), on a proposal
for partial amendments to the two regulations, we expressed
our views on the need to participate and to give our opinion in
real time, especially when dealing with this type of proposal,
which relates to changes in socio-occupational legislation. This
view was ratified in another later EESC opinion (6), which
argued that we should have the opportunity to comment on
any changes made to texts during the decision-making proce-
dure. For these reasons, we would restate the need to take
account of the EESC's role in this type of procedure.

3.4
The situation described in point 3.3 has become even
clearer with the adoption and publication of Regulation
883/2004 (7) on the coordination of social security schemes.
The opinion (8) delivered by the Committee stated the need to

(5) EESC Opinion on the Proposal for a Regulation of the European Parlia-
the Council amending Council Regulation (EEC) No
ment and of
1408/71 on the application of social
to employed
persons, self-employed persons and their families moving within the Com-
munity, and Council Regulation (EEC) No 574/72 fixing the procedure
for implementing Regulation (EEC) No 1408/71, (Rapporteur: Mr Rodrí-
guez García-Caro – OJ C 367, 20.12.2000).

security schemes

(6) EESC Opinion on the Proposal for a Regulation of the European Parlia-
ment and of
the Council amending Council Regulation (EEC) No
to employed
1408/71 on the application of social
persons, self-employed persons and their families moving within the Com-
munity, and Council Regulation (EEC) No 574/72 fixing the procedure
for implementing Regulation (EEC) No 1408/71, in respect of the align-
ment of rights and the simplification of procedures (Rapporteur: Mr
Boldt – OJ C 32, 5.2.2004).

security schemes

(7) OJ L 166, 30.4.2004.
(8) EESC Opinion on the Proposal for a Council Regulation (EC) on coordi-
nation of social security systems (Rapporteur: Mr Rodríguez García-
Caro – OJ C 75, 15.3.2000).

monitor the progress of the proposal, given its complexity and
the certainty of changes to the text during the legislative
process. Four years after the opinion was delivered, the Regu-
lation has been adopted without the EESC having again stated
its views on the text.

Given the importance of these types of rules and the crucial
importance of the EESC's opinion being heard in good time,
the Committee calls for the consultation procedure to be
adapted to make the role played by organised civil society in
the Union's legislative procedure more effective.

Equally, and in order to explain the view expressed by the
Committee in the aforementioned opinion, we believe an own-
initiative opinion should be drawn up on the new Regulation
No 883/2004 on the coordination of social security schemes,
which will eventually replace the current Regulation 1408/71.

Similarly, the Committee considers that the consultative
3.5
role of the Advisory Committee on Social Security for Migrant
Workers, set up by Title V of Regulation No 1408/71 should
be performed in exact compliance with the provisions of that
regulation. This committee, formed principally of trade union
and employers' representatives,
is the forum through which
socio-economic agents convey their views directly to the insti-
tutions, in the form of opinions or proposals, on the changes
that need to be made to social security at Community level.

3.6
Article 90 of Regulation No 883/2004 states that Regu-
lation No 1408/71 shall be repealed, except under certain
circumstances, and Article 91 states that this Regulation shall
enter into force on the twentieth day after its publication in the
Official
the latter article
states, however, that it shall apply from the date of entry into
force of the Implementing Regulation.

Journal. The second paragraph of

For this reason, and given the forthcoming launch, in 2006, of
the European Year of Workers' Mobility, the Committee calls
on the Union's institutions and the Member States to ensure
that the procedure for drawing up and adopting the future
implementing Regulation is as speedy and effective as possible
so that the provisions of the new coordinating Regulation can
enter into force to replace the complex provisions that make
up the current Regulation No 1408/71 at the earliest opportu-
nity.

4. Specific comments

Regulation No 1408/71 on the application of social
4.1
security schemes
to self-employed
to employed persons,
persons and to members of their families moving within the
Community.

4.1.1
IV and VI of the Regulation.

Article 1 of the proposal amends annexes I, II, IIa, III,

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4.1.2
In order to incorporate the changes that have taken
place in Slovak legislation, an amendment is made to Annex I,
section II, which refers to the personal scope of the regulation
as regards the meaning of the term ‘member of the family’.

4.1.9
lation No 1408/71 serve a number of purposes that
Committee wishes to highlight.

The changes made to the various annexes to Regu-
the

4.1.3
Due to changes in French legislation, an amendment is
made to Annex II, section I, on special schemes for self-
employed persons which are excluded from the scope of the
Regulation.

4.1.4
In order to reflect changes to legislation in Estonia,
Latvia and Poland respectively, amendments are made to
Annex II, section II on special childbirth or adoption allow-
ances that are excluded from the scope of the Regulation. This
annex is also amended as regards Luxembourg, as a conse-
quence of a ECJ ruling stipulating that special allowances for
childbirth or adoption cannot be excluded from the Regulation
and are exportable family benefits.

4.1.5
Due to various updates and adaptations to the corre-
sponding legislation in Germany, Latvia, Poland and Slovakia,
amendments are made to Annex IIa of
the Regulation,
concerning special non-contributory benefits.

4.1.6
In order to eliminate unnecessary points and thus
simplify its content, amendments are made to Annex III.A
concerning provisions
that
social
continue to apply despite the Regulation's provision on deleting
them.

security agreements

for

Firstly, they simplify the wording of the text, thereby making it
easier to implement and to understand. Progress is thus made
along the lines laid down by Regulation No 883/2004 on the
coordination of social security schemes, the aim of which is to
simplify and update this coordination whilst complying with
national social security legislation. The Committee therefore
supports these amendments.

Secondly, some national laws have introduced new allowances
for certain circumstances, reflecting advances in the social regu-
lations of these States. The Committee therefore wishes to
express its satisfaction at any advances made in social rights in
the different Member States, but regrets that citizens of the
countries involved in the most recent enlargement should be
subjected to specific administrative obstacles.

4.1.10
Lastly, the Committee is of the view that Annex II,
Section II of the Regulation should be deleted. Member States
should take account of the case-law of the Court of Justice
stating that childbirth and adoption allowances are not special
allowances but family benefits and thus exportable. We would
like to see the Member States accepting this legal reality, before
the Court of Justice extends it to the Union as a whole, by
means of judgments.

Council Regulation No 574/72 laying down the proce-

4.2
dure for implementing Regulation (EEC) No 1408/71.

Amendments are also made for the same purpose to Annex
III.B on the provisions of social security agreements which do
not apply to all persons to whom the Regulation applies. The
numbering is adjusted, and bilateral agreements that fulfil the
conditions for being listed in the annex are included.

4.2.1
Article 2 of the proposal amends four articles of the
Regulation, all referring to healthcare in the event of accidents
at work or occupational diseases.

4.1.7
Due to an incorporation into the legislation of the
Czech Republic, amendments are made to Annex IV.A covering
national legislation under which the amount of invalidity bene-
fits is independent of the length of periods of insurance.

4.2.2
Article 60(4) and (5) on benefits in kind in the case of
a stay in a Member State other than the competent State are
deleted. Notification procedures that are not in practical use are
deleted.

For the same reason and with regard to the Czech Republic
and Estonia, amendments are made to Annex IV.C, on cases
where the double pension calculation may be waived as it will
never lead to a higher result.

The Committee agrees with any measure that simplifies or
eliminates pointless bureaucracy.

As a result of changes to legislation in Slovakia, an amendment
is made to Annex IV. D on the benefits and agreements
regarding the overlapping of benefits of the same kind to
which persons are entitled under legislation in two or more
Member States.

4.2.3
Article 62, on benefits in kind in the case of a stay in
a Member State other than the competent State, is replaced.
The introduction of the European Health Insurance Card elimi-
nates unnecessary procedures which would in any event be
resolved between the competent Member State institutions and
not by the individual, and the wording remains the same as
Article 21 of the Regulation as amended by Regulation No
631/2004.

4.1.8
As a result of changes to legislation in the Nether-
lands, amendments are made to Annex VI on particular
methods for applying the legislation of certain Member States.

The Committee supports any amendment that improves citi-
zens' access to the benefits to which they are entitled.

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4.2.4
Article 63(2) on benefits in kind for workers who
transfer their residence or return to their country of residence,
and for workers authorised to go to another Member State for
is amended. The amendment is required
medical treatment,
because of the reference made in this article to Article 60(5)
and (6), deleted by this proposed Regulation itself.

4.2.5
Article 66(1) on disputes concerning the occupational
nature of the accident or disease is amended to delete the refer-
ence to Article 20 of the Regulation, which was itself deleted
by Regulation No 631/2004.

4.2.6
The Committee supports all the amendments made,
because they improve the Regulation by simplifying its content
and cutting through red tape, insofar as these changes facilitate
citizens' contacts with public administrations.

5. Conclusions

comprehensive and far-reaching simplification to the way
Social Security Schemes are coordinated.

Since the Committee has not been able to consider the
5.2
final wording of the lengthy legislative process leading to Regu-
lation No 883/2004 referred to above, we believe that an own-
initiative opinion on the matter should be drawn up forthwith,
before the legislative process for the new implementing regu-
lation that the Commission is now completing gets underway.

5.3 We in the Committee wish to urge the Commission to
conclude its proposal for an implementing regulation as swiftly
as possible, and the Council and the European Parliament to
take rapid action on the legislative process for adopting the
regulation,
in order to prevent any repetition of the delay
experienced during the processing of Regulation No 883/2004,
especially given that 2006 is to be designated Year of Mobility
for Workers.

simplifying and improving the

5.1
The Committee broadly welcomes the proposed Regu-
lation, subject to the comments made in this opinion. We feel
that
text of Regulations
Nos. 1408/71 and 574/72 to encourage the freedom of move-
ment of persons within the Union's borders is to be welcomed,
but believe it would be even more useful for Regulation No
it brings
883/2004 to enter

into force, because in itself

As

regards

5.4
to the different
the envisaged reforms
annexes to Regulation No 1408/71, the Committee calls for
the reform referring to Section II of Annex II on special child-
birth and adoption allowances to be deleted as soon as possible
by agreement with the Member States, which still retain the
right to derogate.

Brussels, 28 September 2005.

The President

of the European Economic and Social Committee

Anne-Marie SIGMUND