Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems COM(2006) 16 final — 2006/0006 (COD)
Date: 2006-10-26
Institutions: European Economic and Social Committee
Subjects: EU Member State, application of EU law, social-security benefit, social-security harmonisation

30.12.2006

EN

Official Journal of the European Union

C 324/59

Opinion of the European Economic and Social Committee on the Proposal for a Regulation of the
European Parliament and of the Council laying down the procedure for implementing Regulation
(EC) No 883/2004 on the coordination of social security systems

COM(2006) 16 final — 2006/0006 (COD)

(2006/C 324/23)

On 24 February 2006 the Council decided to consult the European Economic and Social Committee, under
Article 149 of the Treaty establishing the European Community, on the abovementioned proposal.

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 6 September 2006. The rapporteur was Mr Greif.

Due to the renewal of the Committee, the plenary decided to discuss this opinion at the October plenary
session and to appoint Mr Greif as rapporteur-general in accordance with Rule 20 of the Rules of Procedure.

At its 430th plenary session, held on 26 October 2006, the European Economic and Social Committee
adopted the following opinion by 118 votes to 0 with 3 abstentions:

1. The EESC's key political messages

The EESC welcomes the presentation of

1.1
the imple-
menting regulation for the new Regulation 883/2004 on the
coordination of national social security systems as an important
step towards improving free movement within the EU.

1.2
The EESC considers it appropriate, particularly in the
current European Year of Workers' Mobility, to call on Member
States to work towards bringing the implementing regulation
into force as quickly as possible. Only then can the new Regu-
lation 883/2004 be implemented and the attendant improve-
ments and simplifications come into effect.

1.3
Rapid adoption would be more than a symbol, as the
aim is in fact to take a concrete step towards giving the citizens
of Europe greater opportunities for mobility. The implementa-
tion of Regulation 883/2004 and the implementing regulation
under discussion here would substantially simplify, clarify and
improve the coordination of social security systems for all bene-
ficiaries and users.

In particular, the EESC welcomes the wider scope of the
1.4
regulation — to cover more persons and more areas of social
security — and all
the provisions to improve cooperation
between social security institutions.

social

security systems

1.5
The EESC calls on the Commission to take the necessary
steps to adapt all the regulations and treaties that extend the
to the European
coordination of
Economic Area, Switzerland, Greenland and nationals of third
countries as soon as possible. All of the above-mentioned regu-
lations and treaties contain references to Regulation 1408/71
and its
implementing regulation 574/72. The appropriate
changes with reference to new Regulation 883/2004 must be
complete by the time it comes into force.

1.6 With regard to better and faster procedures for
the
exchange of data, the EESC recognises the potential for cost
savings in administration and the advantages to insured persons
of speeding up procedures for cross-border cases. However, the
EESC also points out that speeding up the transfer of data alone
will not constitute a breakthrough. The desired efficiency in
processing times will only be achieved if the institutions in the
Member States have sufficient and properly qualified staff with
appropriate technical resources.

1.7
In connection with the future transfer of data largely by
electronic means, the EESC also emphasises its concerns that the
data in question are of a sensitive, personal nature (relating, for
example, to health, incapacity and unemployment). It is there-
fore essential to ensure that these data are properly secure and
cannot fall into the wrong hands.

1.8
The EESC also calls for lessons to be learnt from the
implementation of the European health insurance card, inter alia
as regards the ongoing shortcomings in its practical use in indi-
vidual Member States. Member States are encouraged to take
appropriate steps to ensure that European citizens can make full
use of the advantages of the new arrangements, especially in the
area of health insurance.

In the past,

1.9
The EESC expressly welcomes all those measures in the
implementing regulation that are intended to offer more legal
certainty and transparency to all users of the new coordinating
regulation.
there have been instances between
Member States where debts arising between institutions were
not paid even after several years. The EESC hopes that payment
practice between states will be significantly improved, although
shortcomings in enforcing the collection of outstanding debts
between social security institutions still remain.

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The EESC wonders whether the provisions in the regu-
1.10
lation and the implementing regulation — in particular the
inclusion of economically inactive persons in its scope — might
give rise to a process whereby the EU's generous social security
systems were weakened and benefits gradually eroded. In this
the EESC believes that steps must be taken to
connection,
produce comparable and meaningful data showing the current
and expected future cross-border drawing of health and social
security benefits in the EU. Changes relating to the applicability
of Regulation 883/2004 are particularly interesting.

Finally,

the EESC calls on the Commission and the
1.11
Member States to strengthen measures
to raise awareness
among all potential users of the regulation of the arrangements
for and advantages of coordination of social security systems.
The necessary preparations for this should, in the Committee's
view, be started immediately.

2. Introduction

2.1
The Community rules on the coordination of national
social security systems are currently laid down by Regulation
(EEC) No 1408/71 and its implementing regulation, Regulation
(EEC) No 574/72. Over the years, these two regulations have
been modified and updated several times. Regulation 1408/71
is to be replaced by Regulation (EC) 883/2004 of the European
Parliament and the Council, which was adopted on 29 April
2004.

2.2
These regulations on the coordination of national social
security systems are intended to define the measures necessary
for the persons covered to travel, stay or reside in another
Member State without losing their social security entitlements.
To ensure that rights are safeguarded, the regulations provide for
different procedures to meet specific needs in the various
branches of social security and for the practicalities of coordina-
tion. It is thus a matter of coordinating rather than harmonising
the systems.

Article 89 of new Regulation 883/2004 provides that a
2.3
further regulation shall
lay down the procedure for imple-
menting the said regulation. Only when this implementing regu-
lation (COM(2006) 16 final), which was published in draft form
on 31 January 2006 and is the subject of this EESC opinion,
comes into force, can the new Regulation 883/2004 be imple-
mented after entering into force. Until such adoption, Regu-
lation 1408/71 and its implementing Regulation 574/72 remain
fully in force.

2.4
The separation between basic regulation and imple-
menting regulation has become established practice in the way
Community law deals with coordinating the social security
systems in the Member States. The basic regulation sets out
principles, whereas the implementing regulation is more tech-
nical.

The current draft of the implementing regulation can
2.4.1
therefore be seen as a user manual, so to speak, for Regulation
(EC) 883/2004. Thus, the idea is to clarify any remaining ques-
tions of an administrative or procedural nature and to deal with
certain aspects of Community-wide coordination that require
specific procedures.

For example,

in the area of old-age pensions,

2.4.2
is
necessary to specify what steps insured persons must take in
order to apply for payment of their pensions, to which institu-
tion the claim must be submitted (where they have worked in
several Member States), how the institutions are to exchange
information to ensure that the insured person's full career is
taken into account, and how each institution is to calculate the
pension to be paid for the relevant period.

it

2.5
However, the separation between fundamentals and tech-
nical aspects is not very clear in practice. The current imple-
menting regulation contains a number of points that belong
more logically in the basic Regulation 883/2004.

2.5.1
The negotiations concerning Regulation 883/3004,
which took more than six years, were fortunately brought to a
positive conclusion in April 2004 before the last round of EU
enlargement, and were thus saved from being delayed still
further. A consequence of this was that parts of Regulation
883/2004 were unfinished (for example some empty annexes,
in particular Annex XI). Thus, some substantive issues that more
logically belong in basic Regulation 883/2004 are left to be
dealt with in the current implementing regulation. This relates
in particular to aspects of financial settlement between social
security institutions. There are no outstanding substantive issues
relating to the rights of citizens.

2.5.2
above-mentioned substantive issues.

This EESC opinion will pay particular attention to the

3. Key points of the implementing regulation

3.1

The proposed implementing provisions are intended to:

— Simplify and streamline legislation and administrative proce-

dures

— Clarify the rights and obligations of all those affected by the
coordination of social security systems (social security insti-
and insured
employers
tutions,
persons, employees and self-employed people)

authorities,

competent

— Improve the coordination between social security institu-
the administrative burden falling

tions so as to prevent
primarily on insured persons

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— Simplify the procedures for insured persons for the reimbur-
sement of payment of benefits in cross-border cases, and
reduce response and processing times

However, in contrast to Regulation 1408/71, advances on main-
tenance payments are no longer included within the scope of
Regulation 883/2004.

— Implement better and faster procedures for exchanging data
(in particular by promoting the electronic exchange of infor-
mation and work on electronic documents)

— Cut administration costs (inter alia through more efficient
reimbursement of claims between social security institu-
tions)

— Bring about progress in the fight against fraud and abuse
(inter alia through more effective mechanisms for cross-
border recovery of claims).

3.2
The new implementing regulation differs significantly in
terms of its structure from Regulation 574/72 implementing
Regulation 1408/71. This is largely because the structure of the
the new basic
new implementing regulation follows that of
Regulation 883/2004, which differs substantially from basic
Regulation 1408/71 on a number of points. The most signifi-
cant difference is that the new Regulation 883/2004 is wider in
terms of the persons and areas of social security covered than
the current Regulation 1408/71. In addition, the focus in the
new Regulation 883/2004 has been put on general provisions
and definitions, which differs
from the special provisions
contained in the chapters on individual classes of insurance in
Regulation 1408/71.

3.2.1
Regulation 1408/71 was originally only designed for
employees and their dependants. At the beginning of the 1980s,
the scope was extended to include self-employed people. At the
end of
the 1990s, this was further extended to cover civil
servants and students.

3.2.2
In order to fall within its scope, a person had to be a
citizen of a Member State or resident in a Member State as a
stateless person or refugee. Family members and survivors are
also included.

3.2.6
Regulation 883/2004 now applies to all legislation that
affects the following areas of social security: a) sickness benefits;
b) maternity and equivalent paternity benefits; c) invalidity bene-
fits; d) old-age pensions; e) survivor's pensions; f) benefits in
respect of accidents at work and occupational diseases; g) death
grants; h) unemployment benefits; i) early retirement pensions;
j) family benefits.

3.3
The extension of the scope necessitates certain new rules
and procedures that are tailored to these groups of people,
including, for example, provisions defining the legislation applic-
able for taking account of the periods that people who have
never been employed or self-employed devoted to bringing up
children in their various countries of residence.

The structure of

3.4
implementing regulation
the current
follows that of the basic Regulation 883/2004: Title 1 deals
with general rules, Title 2 deals with the applicable legislation,
and Title 3 covers specific provisions for the various categories
of benefits, followed by financial provisions (Title 5) and transi-
tional and final provisions. In its specific comments on indivi-
dual articles of the regulation, the Committee will concentrate
on the general rules and the applicable legislation rather than
on the details of the individual types of benefits.

The annexes

3.4.1
to the implementing regulation are
currently empty and must be completed. They include imple-
menting provisions for agreements that remain in force, and
new implementing provisions for agreements (Annex 1), special
schemes for civil servants (Annex 2), Member States reimbursing
the cost of benefits on a lump-sum basis (Annex 3) and the list
of competent authorities and institutions already mentioned
(Annex 4).

Survivors are also included if they are citizens of a
3.2.3
Member State, in which case the nationality of the person from
whom the rights are derived is not relevant.

In addition, many measures and procedures provided for
3.5
in the regulation are intended to ensure greater transparency of
the criteria which the institutions of the Member States must
apply under Regulation 883/2004.

3.2.4
who are insured under national
persons are also fully covered.

Regulation 883/2004 now applies to all EU citizens
legislation, as non-employed

3.2.5
The scope of what is covered is also wider than under
Regulation 1408/71. In new Regulation 883/2004, in addition
to the existing arrangements, early retirement pensions and
paternity benefits equivalent to maternity benefits are included.

3.5.1
Thus, numerous definitions that have been grouped
together in the general provisions in Title 1 of Regulation
883/2004 were spread over different categories of
social
security in Regulation 1408/71, which in some cases dealt with
them inconsistently. There is more emphasis on general defini-
tions and fewer definitions in the individual chapters. Thus, the
new regulation does not treat each category of insurance as a
different world with its own rules.

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Article 5 (equal treatment of facts) is also a significant
3.5.2
step. This stipulates that Member States are to take account of
facts or events occurring in another Member State as though
they had taken place in their own territory.

2006. In view of the complexity and breadth of the subject
matter, and of the large number of questions remaining, it will
certainly take some time for all the practical and procedural
details in the individual Member States to be dealt with by the
Council and the Administrative Commissions.

for

3.6
The content of the basic regulation and implementing
regulation only applies to cross-border matters between at least
two Member States. Only in these cases are there any additional
such as
requirements
informing the social security institution of a posting abroad.
What other responsibilities insured persons and employers have
in the competent Member State remains a matter for
the
Member States and is not affected by the basic regulation or the
implementing regulation.

insured persons or

employers,

It

is planned that

4.4.1
the implementing regulation will
come into force at the beginning of 2008. As stipulated in
Article 91, the regulation comes into force six months after its
publication in the Official Journal of the European Union. This
length of time seems necessary, but also sufficient for adapting
systems to the new regulations. An extension of the six-month
period between publication and entry into force should certainly
be avoided.

4. General comments

The EESC welcomes the presentation of

the imple-
4.1
menting regulation for the new Regulation 883/2004 on the
coordination of national social security systems. This proposal is
a step towards better conditions for free movement within the
EU. It does not contain any significant problems for the various
bodies responsible for implementing the laws and administrative
procedures for coordinating social security systems in the
Member States, nor does it appear to contain any provisions
that might cause problems for insured persons.

On the contrary,

4.2
the draft regulation contains many
simplifications, clarifications and improvements. In particular,
the EESC welcomes its wider scope — to cover more persons
and more areas of social security — and all the provisions to
improve cooperation between social security institutions.

The expansion of the scope to cover more persons will
4.2.1
have the greatest effect on the numbers of people covered in
those countries in which insurance cover is based on residency.
In countries in which insurance cover is linked to employment,
the effect is less noticeable, as hardly any new groups of people
are included.

Therefore, the EESC repeats its call, aimed in particular at
4.3
the Member States and made in previous opinions, to push
forward with processing the draft implementing regulation as
quickly as possible and to work to ensure that it enters into
force as soon as possible. The new regulation on coordination
and the attendant improvements and simplifications must be
put into effect as quickly as possible (1).

4.4.2
To facilitate the rapid implementation of the basic regu-
lation, the EESC therefore calls on the Member States to provide
their social security institutions, without delay, with the neces-
sary resources in terms of staff and equipment to enable them
to adapt quickly. Existing instruments at national level — in par-
ticular the existing TRESS networks (2), which bring together
the interested parties and players in the Member States —
should be used to carry out an appropriate evaluation of the
practical
regulation in individual
Member States once it enters into force. The EESC calls on the
Commission to support these measures. An extension of the
six-month period between publication and entry into force
should certainly be avoided.

implementation of

this

still being done on Regulation
4.5 Moreover, work is
883/2004 itself. In particular, Annex XI needs mentioning here.
When the regulation was adopted in 2004, this annex was not
completed and is now being dealt with and discussed alongside
the draft
implementing regulation in the Council working
group.

4.5.1
Annex XI does not only affect Regulation 883/2004,
but also the implementing regulation itself. The two documents
cannot be viewed separately from each other. Annex XI deals
with Special provisions for the application of the legislation of the
Member States. The content of this annex must be determined by
the European Parliament and by the Council before the date of
application of the implementing regulation.

The current draft for the implementation of Regulation
4.4
883/2004 has taken some time to see the light of day, around a
year and a half having passed since the adoption of Regulation
It has been on the table since the beginning of
883/2004.

4.5.2
This annex may define specific procedures for imple-
menting certain laws. In it, the Member States try to uphold
certain national provisions. Annex XI is one of the most contro-
versial parts of the regulation, in that it may contain quite a
number of entries. The EESC will express a separate view on
this matter directly after this opinion.

(1) EESC opinion on Social security schemes for employed and self-employed
persons (rapporteur: Mr Rodríguez García-Caro), OJ C 24, 31.1.2006.

(2) Training and Reporting on European Social Security (see also: http://

www.tress-network.org/).

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In particular, the pursuit of vested interests must not,
4.6
inter alia in the context of the European Year of Workers' Mobi-
lity 2006 proclaimed by the Commission,
further delay the
entry into force of the new coordinating Regulation 883/2004
and with it the application of all the improvements already
adopted. Rapid adoption would be more than a symbol, as the
aim is in fact to take a concrete step towards giving the citizens
of Europe greater opportunities for mobility (3).

area and to the same wider group of people. Otherwise, the
affected third-country nationals and citizens of the EEA, Switzer-
land and Greenland would not come under its protection. It is
also possible that EU citizens would be put at a disadvantage in
certain cross-border matters involving these countries. Regu-
lation 1408/71 would continue to apply to such cases.

4.7
The EESC points out that Regulation 1408/71 and its
implementing regulation 574/72 remain in force for certain
groups of people even if Regulation 883/2004 enters into force,
(See
unless other regulations or agreements are also altered.
Article 90 of the basic regulation and Article 90 of the imple-
menting regulation.)

4.7.1
The scope of the rules for coordinating social security
set out in 1408/71 was widened to additional groups of people
over the years. This inclusion of additional groups of people
was not, however, laid down in Regulation 1408/71 or 574/72
itself, but in specific additional regulations or agreements.

4.7.2
Firstly, this affects the applicability of the rules on coor-
dination for third country nationals, their family members and
their survivors, which is covered by Regulation 859/2003. Since
1 June 2003, third country nationals lawfully resident in a
Member State are covered by the coordination rules in the same
way as EU citizens. An important point to remember is that the
inclusion of third country nationals within the scope applies
only to cross-border issues between at least two Member States
involving these insured persons, and not to cross-border issues
between their home country and an EU country.

4.7.3
Secondly, the provisions of Regulations 1408/71 and
574/72 have applied to EEA Member States and their citizens
since 1994. The agreement with Switzerland on the free move-
ment of persons, which has been in force since 1 June 2002,
expands the scope of the coordinating rules to Switzerland.
Regulation 1661/85 led to the inclusion of Greenland and its
citizens.

4.7.4
All of this also meant that EU citizens also benefited
from wider geographical scope. EEA countries and Greenland
were put on the same footing as EU countries. In the spirit of
equal treatment of EU nationals and third country nationals in
social matters, this state of affairs should be preserved. Appro-
priate changes to these regulations are also needed if this exten-
sion of scope is also to apply to Regulation 883/2004.

4.8 With this in mind, the EESC calls for all the relevant
regulations and treaties that relate to Regulation 1408/71 to be
amended as soon as possible, and certainly by the start date of
the new coordination arrangements. It should then be possible
to apply Regulation 883/2004 in the same wider geographical

(3) See also opinion on Amendment Regulation 1408/71 (SOC/213, CESE

920/2006, rapporteur Mr Rodríguez García Caro, point 5).

The Commission is urged to take the necessary steps as
4.8.1
soon as possible. Firstly, there is unequal treatment of different
citizens resident in the European Union. Secondly, having to
apply two such complex regulations simultaneously would also
be a disproportionate burden on social security institutions in
the Member States.

should also be pointed out

if Regulation
It
4.8.2
1408/71 and its
implementing regulation 574/72 are to
continue to apply, even if only to a small group of beneficiaries,
they will need constant renewing and adapting to changes. This
would be an unacceptable burden for the administration of the
European Union and for all users of the regulations.

that

Regulation 883/2004 also provides for better procedures
4.9
for faster and more reliable exchange of data between social
security institutions in the Member States. In particular, this is
to involve the promotion of electronic data exchange and
working with electronic documents.

4.9.1 Whilst procedures involving paper documents have
hitherto been the norm, and electronic processing only
happened by mutual agreement between two Member States,
the electronic exchange of all data between institutions is now
to be the rule.

4.9.2
this is
As well as savings in administrative costs,
expected to have advantages in terms of faster procedures for
insured persons, shorter response and processing times, and
faster reimbursement or payment of benefits in cross-border
cases.

4.9.3
The proposed regulation stops a long way short of
saying that every institution must communicate electronically
with every institution in the EU. Instead, a minimum of one
in one institution per Member State, which is
access point
equipped to receive and send electronic social security data and
forwards the data to the competent national institution, is suffi-
cient. However, Article 83 of
for the
purposes of identifying the communication partner, a public
database must be created. This includes the ‘competent authori-
‘institutions of the place of resi-
ties’,
dence’,
‘access point’ and
‘liaison body’ as defined. This access makes it possible to replace
institutions
previous annexes to the regulation with lists of
updated as appropriate.

‘competent institutions’,

the draft states that,

the place of stay’,

‘institutions of

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In this context, the EESC calls for lessons to be learnt
4.9.4
from experience with the implementation of
the European
health insurance card, inter alia as regards the ongoing short-
comings in its practical use in individual Member States. In par-
ticular, the extent to which it would be possible to use health
insurance institutions' existing databases should be looked into.
It will be up to the Administrative Commission to identify the
data that are essential for communication. In addition, Member
States should be encouraged to take appropriate steps so that
European citizens can make full use of the advantages of the
new arrangements, especially in the area of health insurance.

The EESC recognises

4.10
that electronic data transfer
enables processing to be speeded up, which is in the interests of
insured persons. To that extent, this change is welcome. At the
same time, however, the EESC is concerned that this involves
sensitive personal data (relating to such matters as health, inca-
pacity and unemployment). It is therefore essential to ensure
that these data are properly secure and cannot fall
into the
wrong hands.

4.10.1
All of the guarantees provided for in the Community
provisions on the protection of natural persons with regard to
the processing and free movement of personal data also apply
here. These were regulated by Article 84 of Regulation 1408/71
and are set out in Article 77 of Regulation 883/2004. Nonethe-
less, in particular in the light of electronic data transfer between
institutions in Member States becoming the rule, the EESC calls
for the implementing regulation to make explicit reference to
the sensitivity of
the data and to provide for appropriate
mechanisms to ensure their security.

Consequently,

the EESC does not believe

that
4.11.2
speeding up the transfer of data and facts will in itself bring
about a breakthrough. The desired efficiency in processing times
will only be achieved if the institutions in the Member States
have sufficient and properly qualified staff with appropriate
technical resources.

The EESC therefore calls on the Member States to
4.11.3
begin immediately preparing staff in social security institutions
for the new arrangements in the basic regulation and the imple-
menting regulation. Appropriate staff training is indispensable.
The EESC calls on the Commission to take appropriate initia-
tives within its competence to support the Member States in
carrying this out. In particular, it calls for Community resources
to be made available for
training programmes and, where
appropriate, assistance with training to be provided.

Because the social security schemes covered by Regu-
4.12
insured
lation 883/2004 are based on solidarity between all
persons, provision should be made for mechanisms to ensure
more effective recovery of claims relating to benefits not due or
contributions not paid by the insured person or the contribu-
tions payer.

4.12.1
The EESC agrees with the Commission that more
binding procedures to reduce the time needed for payment of
these claims between Member States' institutions are essential in
order to maintain confidence in the exchanges.

At all events, the EESC regrets the absence of a form
4.10.2
in Article 84(5)b of Regulation
of words similar
to that
these data for
1408/71, which strictly forbids the use of
purposes other than social security. Such a provision should be
explicitly included in Article 4 of the implementing regulation.

4.12.2
For example, the implementing regulation provides
for setting common deadlines for fulfilling certain obligations or
completing certain administrative tasks, which are intended to
help clarify and structure relations between insured persons and
institutions.

The advantages of using electronic means for

4.11
the
exchange of data between social security institutions should not,
however, be exaggerated. There is no doubt that data will be
institutions
transferred more quickly. In many cases, national
also need to be restructured.

for mutual

Furthermore,

4.12.3
assistance
procedures
between institutions, based on Council Directive 76/308/EEC on
mutual assistance for the recovery of claims relating to certain
levies, duties, taxes and other measures, are planned. In addition,
interest on contributions owed is to be introduced, which is
expected to improve payment practice.

It

is questionable, however, as to whether

4.11.1
faster
transfer times will really bring about significant benefits to
insured persons. As a rule, the time taken for data transfer is
relatively short in comparison to the total time taken to process
a file. Due to the complexity of
the matters involved (take
pensions for example: contribution paid in more than one
country, pro rata calculations, etc.), some cases will still require
special processing and cannot be dealt with by computer
programmes without disproportionate cost or indeed at all. In
such cases the files will still need to be dealt with by officials.

4.12.4
The EESC expressly welcomes all of these measures
set out in the implementing regulation that are intended to offer
more legal certainly and transparency to all those involved in
implementing the new coordinating regulation.
In the past,
there have been instances between Member States where debts
arising between institutions were not paid even after several
years. The EESC hopes that payment practice between states will
be significantly improved, although shortcomings in enforcing
the collection of outstanding debts still remain.

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The EESC also welcomes the greater flexibility of the
4.13
new implementing regulation when compared to Regulation
574/72, which fixed the procedure for implementing 1408/71.
This will continue to allow Member States to implement some-
what better at bilateral
level than is required in the imple-
menting regulation, provided that doing so is not detrimental to
the interests of beneficiaries and to coordination. However, on
the basis of this principle, according to which this flexibility
should not be detrimental to beneficiaries, the EESC advocates a
stronger form of words in Article 9 than the current one, which
‘these procedures [must] not adversely affect the
states that
rights of beneficiaries’. In particular, it should be explicitly stated
that other forms of implementation must not lead to longer
deadlines or additional administrative procedures.

4.14
The EESC calls on the Commission and the Member
States to strengthen measures to ensure that all users of the
regulation are better informed about the rules and benefits of
coordinating social security systems,
including the changes
brought about by the applicability of 883/2004. The informa-
tion should be sent to businesses and all insured persons, in par-
ticular to those active in a wide variety of forms of employment,
from employees to the informal sector. The necessary prepara-
tions for this should, in the Committee's view, be started imme-
diately.

Regulation 883/2004 provides that procedures must
4.15
reflect
the need for a balanced sharing of costs between
Member States. However, the EESC wonders in this context
whether the provisions in the regulation and the implementing
regulation might give rise to a process whereby the EU's
generous social security systems were weakened and benefits
gradually eroded. In particular, with regard to the inclusion of
economically non-active persons within the scope of the regu-
lation and to the free movement of persons within the EU, the
EESC insists that coordination should not lead to any levelling
down or dismantling of social standards.

4.15.1
In this connection, the EESC believes that steps must
be taken to produce comparable and meaningful data docu-
menting the current and expected future cross-border drawing
of health and social security benefits in the EU. Changes
resulting from Regulation 883/2004 are particularly relevant.

insured persons must be enforceable. Appropriate legal instru-
ments should be created. Any detriment that may arise must
not be suffered by insured persons. Compensation must be paid
by the institution in whose sphere of responsibility the damage
occurred. Such a provision should be inserted into Article 2 of
the implementing regulation.

5.2 Article 3: Scope and rules for exchanges of data between benefici-

aries and institutions

Article 3.4: For the purposes of speeding up procedures, incen-
tives should be given to ensure that both documents and, in
particular, acknowledgements of receipt are sent electronically.
Paper documents should be sent only in exceptional cases.

5.3 Article 4: Format and method of exchanging data

With regard to electronic information, in addition to the data
protection mentioned in point 3.10.2, it should also be ensured
that electronic communication with insured persons only takes
place with the latter's consent. With regard to pensions in par-
ticular, many of the people concerned have led their entire lives
without electronic communication. They cannot be forced to
start now. Moreover, many have no access to electronic media.
Other groups for whom access to computers is limited or diffi-
cult (such as people with disabilities) should also be given due
consideration. Steps should be taken to promote public access
to the appropriate technologies and to make such access as
universal as possible.

With this in mind, the EESC calls for the following wording to
be added to Article 4.2: ‘All measures and arrangements for elec-
tronic data exchange must meet the requirements of universal
accessibility’. The EESC also has difficulty with the wording in
Article 4(3), which states that in their communications with
beneficiaries, the competent institutions shall favour the use of
electronic means. The EESC calls for the words ‘provided that
the beneficiaries express their agreement’ to be added to this
clause.

5. Further specific comments on individual articles

5.4 Article 5: Legal value of documents and supporting documents

issued in another Member State

5.1 Article 2: Rules for exchanges between institutions

The EESC calls for clear deadlines to be set for responses and
processing. If these deadlines are not met, insured persons must
receive compensation for any damages they suffer. The rights of

Article 5(2): This states that the institution of a Member State
may contact the institution of another Member State that issued
a document in order to ask it for clarification of that document.
If, as set out in Article 5(1), the document was issued by a tax
authority, should the social security institution of one country
contact another country's tax authority in order to receive clari-
fication? This appears impracticable and burdensome.

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What are the liaison bodies for? The EESC suggests that the
information and assistance powers of
the liaison bodies be
strengthened so that they can perform the appropriate task. The
institutions then need only contact
the liaison body to get
answers to their questions.

Article 5(3):The fact that the administration commission has six
months to adjudicate between two or more institutions from
two or more countries does not appear to constitute a simplifi-
cation or an improvement of coordination between social
security systems. This time frame is excessive. The EESC calls for
the maximum time for
the processing of an application,
including all communication between institutions, to be set at
three months altogether.

5.8 Article 16: Procedure for the application of Article 12 of Regu-

lation 883/2004

This requires employers who post workers to another Member
State to inform the competent institution of the posting, ‘where
feasible’ in advance. The EESC calls for the words ‘where feasible’
to be deleted, as they leave too much room for interpretation.

It should be ensured that the competent institution is informed
in advance as a rule, the aim being to create legal certainty for
insured persons posted abroad and to avoid problems that they
may face if an insured event takes place during their posting
and if the institution of the Member State to which the worker
is posted is not informed.

5.5 Article 8: Administrative arrangements between two or more

Member States

to conclude arrangements
This authorises Member States
between themselves, provided that these arrangements do not
adversely affect the rights of beneficiaries. For the purposes of
transparency and legal certainty for those affected, the EESC
calls for the Commission to be informed and sent a copy of all
such agreements. A list of these agreements in an annex to the
implementing regulation would create greater legal certainty.

5.6 Article 11: Elements for determining residence

Article 11(1)a)-e) set out objectively determinable facts for deter-
mining residency, with the person's intention considered to be
an equally decisive criterion. The EESC believes that residency
should be established first and foremost by objectively determin-
able facts. Only if this is not possible should reference be made
to the intention expressed by the person concerned,
i.e. as a
secondary criteria as set out in point 2.

Moreover, the EESC has its doubts as to whether enquiries into
individual reasons for changing place of residence might consti-
tute unlawful prying into citizens' private lives.

5.9 Article 21: Obligations of the employer

Article 21 makes it possible for the obligations to pay contribu-
tions to be fulfilled by the employee if the employer does not
have an establishment in the Member State whose legislation is
applicable to the employee. The employer must agree this with
the employee.

The EESC considers it important that, whatever happens, the
responsibility remains with the employer. Thus, this possibility
of transferring the obligation to pay contributions must not
lead to employees being burdened with employer's contribu-
tions, thus reducing their net remuneration. The employee must
receive full compensation from the employer for any employer
contributions he pays.

The EESC calls for a requirement for the agreement mentioned
in Article 21(2) to be made in writing in order to avoid any
legal uncertainty. The employer's obligation to inform the
competent institution of this agreement should, in the EESC's
view, be worded more strongly. The information should be sent
immediately (within a short period to be fixed) and in writing.

5.7 Article 12: Aggregation of periods

5.10 Article 25: Stay in a Member State other than the competent

Member State

Article 12(3) states that where a period of compulsory insurance
coincides with a period of insurance completed on the basis of
voluntary insurance in another Member State, only the period
completed on the basis of compulsory insurance shall be taken
into account. The EESC takes the view that this must not in any
circumstances
contributions paid
becoming worthless. In such cases, the implementing provision
should provide that the full value of the contributions paid is
refunded to the insured person.

lead to any

voluntary

For the purposes of a stay in a Member State other than the
competent Member State, Article 25 (A)(1) calls for a document
to be issued proving the entitlement to benefits in kind. The
EESC believes that it should be made clear that the European
health insurance card fulfils these requirements and that no
additional certification is required.
If another form of proof
should be introduced in the future, there is nothing to stop this
article being amended.

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It is unclear whether, under Article 25(B), the insured person is
entitled to choose whether to apply for reimbursement from the
institution in the place of stay or from the competent institu-
tion.

5.11 Article 26: Scheduled treatment

The EESC takes the view that the wording of Article 26 (B),
‘Meeting the cost of benefits in kind as part of scheduled treat-
ment’ is open to misinterpretation and should be clarified. In
line with the Commission's intention, the EESC suggests the
following beginning to the paragraph: ‘When an authorisation is
granted and the insured person has met the cost of treatment
him or herself, the competent institution shall meet the costs of
the expenses at the highest rate and shall pay this sum to the
insured person…’.

Otherwise, one could infer that the competent institution reim-
burses the implementing institution and that the insured person
could then claim any difference that may remain. This is not the
intention as regards meeting the costs of scheduled treatment.

5.12 Article 88: Amendment of the Annexes

As already stated in point 4.5, the currently empty Annex XI,
which is to set out certain procedures for the application of
certain national
is being dealt with and discussed
alongside the draft implementing regulation in the Council. In
it, the Member States try to uphold certain national provisions.
Annex XI is a sensitive part of Regulation 883/2004, as it may
contain quite a number of entries.

legislation,

The EESC calls for any entries in this annex to be limited to
what is strictly necessary. It will issue a separate opinion on this
matter.

5.13 Article 91: Final provisions

In view of the public significance of rapid implementation of
the implementing regulation, the EESC — as already stated in
point 4.4 — calls on the Member States to set a clear deadline
by which the negotiations in the Council on the implementing
In the case of the European
regulation must be completed.
health insurance card, such a politically agreed deadline proved
useful and attainable. Basic regulation 883/2004 must enter
into force as quickly as possible.

Brussels, 26 October 2006.

The President

of the European Economic and Social Committee

Dimitrios DIMITRIADIS