Proposal for a Council Regulation extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to nationals of third countries who are not already covered by these provisions solely on the ground of their nationality
Date: 2007-07-23
Institutions: European Commission
Subjects: EU Member State, foreign national, social-security benefit, social-security harmonisation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 23.7.2007 
COM(2007) 439 final 

2007/0152 (CNS) 

Proposal for a 

COUNCIL REGULATION 

extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to 
nationals of third countries who are not already covered by these provisions solely on 
the ground of their nationality 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

•  Grounds for and objectives of the proposal 

This  proposal  is  intended  to  replace  Regulation  (EC)  No  859/2003  and  extend  the 
provisions  of  Regulation  (EC)  No  883/2004  and  its  implementing  Regulation  to 
nationals of third countries who are not already covered by these provisions solely on 
the ground of their nationality. 

In the spirit of updating and simplification, it is in fact useful and necessary to restate 
the  existing  provisions  for  these  third-country  nationals  in  a  new  text  which  will 
replace Regulation (EC) No 859/2003. 

•  General context 

Regulation (EC) No 859/2003 extended the application of the provisions of Regulation 
(EEC)  No  1408/71  and  Regulation  (EEC)  No  574/72  to  nationals  of  third  countries. 
Regulation  (EEC)  No  1408/71  was  simplified  and  updated  by  Regulation  (EC) 
883/2004, which will apply once its implementing Regulation has come into force. 

This  proposal  aims  to  ensure  that  the  same  rules  for  coordinating  social  security 
schemes are applied to nationals of third countries as those which apply to European 
citizens  since  the  entry  into  force  of  Regulation  (EC)  No  883/2004  and  its 
implementing Regulation. 

•  Existing provisions in the area of the proposal 

Council Regulation (EC) No 859/03 of 14 May 2003. 

This proposal pursues the same objectives as Regulation (EC) No 859/03, which is to 
extend  the  scope  of  the  Community  provisions  in  force  in  the  field  of  coordinating 
social security schemes to nationals of third countries who are not already covered by 
these provisions solely on the ground of their nationality.  

•  Consistency with other policies and objectives of the Union 

This proposal is consistent with the Union's policy on immigration and the integration 
of third country nationals. 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

It  was  not  necessary  to  consult  interested parties  because  this  proposal  is  primarily  a 
recasting of Regulation (EC) No 859/03. 

•  Collection and use of expertise 

No recourse to external expertise has been necessary. 

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•  Impact assessment 

Technically, this proposal is virtually a copy of current Regulation (EC) No 859/03. 

It  is  needed  in  order  to  build  legal  bridges  between  third-country  nationals  who  are 
legally resident in the Community and are in a cross-border situation and the updated 
system of coordination of social security systems provided for by Regulation (EC) No 
883/04 and its implementing Regulation, which apply to Community nationals. This 
link,  i.e.  Regulation  (EC)  No  859/03,  currently  exists  under  Regulation  (EEC)  No 
1408/71 and its implementing Regulation (EEC) No 574/72. 

This  proposal  is  therefore  a  key  extension  to  the  coordination  of  social  security 
systems both in terms of equal treatment and  non-discrimination with respect to the 
nationals of third countries and in terms of administrative simplification, the reduction 
of  administrative  costs  and 
involved  (national 
administrations, social security institutions and the persons insured). 

legal  clarity  for  all  parties 

Failure to extend the updated coordination to third-country nationals would result in 
complexity and excessive administrative management costs, which would be hard to 
control. The outcome would be that social security institutions in the Member States 
would  continue  to  apply  the  old  coordination  rules  (Regulations  (EC)  Nos  1408/71 
and 574/72) to third-country nationals only. 

Given  the  progress  made  in  the  context  of  the  future  implementing  regulation  for 
Regulation (EC) No 883/2004, it is important to continue the momentum so that all 
the  legislative  texts  enabling  the  implementation  of  updated  and  simplified 
coordination  (beginning  of  2009)  are  submitted  to  the  Council  and  the  European 
Parliament  and  complete  their  legislative  process  on  time.  It  is  therefore  important 
that once Regulation (EC) No 883/2004 has entered into force, the Member States and 
their  social  security  institutions  do  not  find  themselves  in  the  situation  of  having  to 
continue to apply Regulations (EC) Nos 1408/71 and 574/72 to the nationals of third 
countries  only  whilst  they  apply  the  provisions  of  Regulation  (EC)  No  883/2004  to 
Community nationals. 

The fact that the scope of Regulation (EC) No 883/2004 also covers persons who are 
not  professionally  active  (non-active  persons)  will  not  have  a  significant  impact  on 
the burden borne by the Member States for two reasons: 

- the small number of persons who will be concerned in comparison with the current 
situation; 

-  coordination  of  the  rights  of  these  persons  is  based  on  the  principle  of  the 
competence of the Member State of residence. 

There  are  no  data  available  to  estimate  how  many  people  are  concerned  by  this 
extension of the provisions of Regulation (EC) No 883/2004. 

3)  LEGAL ELEMENTS OF THE PROPOSAL 

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•  Summary of the proposed action 

This proposal is intended to extend the provisions of Regulation (EC) No 883/2004 on 
the  coordination  of  social  security  systems  to  nationals  of  third  countries  who  are 
legally resident in a Member State and who are not already covered by these provisions 
solely on the ground of their nationality. 

This proposal will replace Regulation (EC) No 859/2003. 

•  Legal basis 

Article 63(4) of the Treaty. 

•  Subsidiarity principle 

The principle of subsidiarity applies insofar as the proposal does not concern an area in 
which the Community has exclusive competence. 

The objectives of the proposal may not be achieved to a sufficient extent by the action 
of Member States for the following reasons: 

Article 63(4) of the  Treaty states that the Council shall adopt "measures defining the 
rights and conditions under which nationals of third countries who are legally resident 
in  a  Member  State  may  reside  in  other  Member  States".  The  coordination  of  social 
security systems is unquestionably a key element in this context. It is also necessary to 
ensure  equal  treatment  and  non-discrimination  with  respect  to  the  nationals  of  third 
countries who are legally resident on the territory of the European Union. 

This proposal concerns cross-border situations where no Member State can act alone.  

The  aims  of  the  proposal  may  be  better  achieved  through  Community  action  for  the 
following reasons. 

The extension of the application of the provisions regarding the coordination of social 
security systems only makes sense at Community level. The objective is to guarantee 
the coordination of social security systems in the Member States for nationals of third 
countries who are legally  resident  in  the EU and who are  in  a cross-border situation. 
This  Community  action  ensures  that  all  nationals  of  third  countries  who  are  legally 
resident in the EU are treated in the same way. 

By  imposing  the  same  coordination  rules  for  nationals  of  third  countries  as  for 
European citizens, this proposal simplifies the coordination of social security systems 
for the Member States. 

The  aims  of  the  proposal  may  be  better  achieved  through  Community  action  for  the 
following reasons: 

The  extension  of  the  application  of  the  Community  provisions  regarding  the 
coordination of social security systems to nationals of third countries who are legally 
resident in a Member State only makes sense at Community level. The objective is to 
guarantee that these provisions are applied to third-country nationals in all the Member 

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States. 

There  is  no  quantitative  indicator  which  makes  it  possible  to  estimate  exactly  how 
many people are concerned by this proposal. 

The proposal is purely a coordinating measure which can be taken only at Community 
level. Member States remain responsible for organising and financing their own social 
security schemes. 

The proposal therefore complies with the subsidiarity principle.  

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reasons. 

The proposal guarantees the equal treatment of Community nationals and third-country 
nationals  in  the  field  of  the  coordination  of  social  security  systems  in  the  Member 
States.  It  aims  to  simplify  and  clarify  the  legal  rules  applicable  in  this  field  by 
extending them to the aforementioned category of persons in the Community. 

A  Regulation  is  deemed  to  be  the  most  appropriate  instrument  for  achieving  this 
objective. 

This  proposal  simply  seeks  too  align  Community  provisions  in  the  field  of  the 
coordination  of  social  security  systems  applicable  to  nationals  of  third  countries  who 
are  legally  resident  in  the  EU  with  those  applicable  to  Community  nationals.  The 
financial  and  administrative  burden  involved  will  be  proportionate  to  the  above-
mentioned  objectives.  Conversely,  failure  to  carry  out  this  alignment  will  lead  to  a 
complex administrative situation resulting in higher administrative costs for the social 
security institutions in the Member States. 

•  Choice of instruments 

Proposed instrument(s): Regulation. 

Other means would not be adequate for the following reason(s). 

This proposal aims to replace Regulation (EC) No 859/2003. 

The  choice  of  a  coordinating  regulation  to  safeguard  the  social  security  rights  of 
nationals of third countries who are legally resident in the EU and are in a cross-border 
situation  is  proportionate  to  the  objective  pursued,  as  defined  by  the  legislator  in 
Article 63(4) of the Treaty.  

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

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5)  ADDITIONAL INFORMATION 

•  Simplification 

The proposal introduces simplified administrative procedures applicable to the public 
authorities (national or European). 

The proposal introduces simplified administrative procedures applicable to the public 
authorities and private entities and individuals. 

The proposal makes it possible for the same provisions as regards the coordination of 
social security to be applied to nationals of third countries as are applied to Community 
nationals. 

•  Repeal of existing legislation 

The  adoption  of  this  proposal  will  mean  that  some  legislative  provisions  must  be 
repealed. 

•  Review/revision/sunset clause 

The proposal includes a sunset clause on all or part of the legislative act if predefined 
conditions are met. 

•  Detailed explanation of the proposal by chapter or by article 

Article 1 

This  article  aims  to  apply  the  provisions  of  Regulation  (EEC)  No  883/04  and  its 
implementing Regulation to nationals of third countries who, pursuant to Article 2, are 
not  already  covered  by  this  Regulation  on  the  ground  of  their  nationality.  Certain 
categories  of  third-country  nationals  are  already  included  in  its  scope  –  namely 
stateless  persons,  refugees  and  members  of  families  and  survivors  of  Community 
nationals as defined by this Regulation. 

The  nationals  of  third  countries  covered  by  this  text  must  be  legally  resident  on  the 
territory  of  a  Member  State  and  hence  have  a  temporary  or  permanent  right  of 
residence. To benefit from the Regulation in a second Member State, the third-country 
national  does  not  however  have  to  satisfy  the  residency  conditions,  but  may  simply 
move to the second country, in compliance with that country’s national legislation on 
entry and residence. 

The reference to the provisions of Regulation (EEC) No 883/04 is dynamic so that they 
will  apply  to  the  persons  referred  to  in  the  version  in  force  at  any  given  time,  hence 
including possible modifications at a later date. 

Article 2 

This article contains provisional rules designed to protect the persons covered by this 
Regulation, so as that they do not lose their rights as a result of its entry into force.  

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2007/0152 (CNS) 

Proposal for a 

COUNCIL REGULATION 

extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No […] to 
nationals of third countries who are not already covered by these 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(4) thereof, 

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Parliament2, 

Having regard to the opinion of the European Economic and Social Committee,3 

Having regard to the opinion of the Committee of the Regions,4 

Whereas: 

(1) 

(2) 

(3) 

Since the special meeting in Tampere in 1999 the European Parliament5, the Council 
and  the  European  Economic  and  Social  Committee6  have  called  for  the  better 
integration  of  nationals  of  third  countries  who  are  legally  resident  in  the  territory  of 
Member  State  by  giving  them  a  set  of  uniform  rights  as  close  as  possible  to  those 
enjoyed by citizens of the European Union. 

The Justice and Home Affairs Council of 1 December 2005 stressed that the European 
Union  must  ensure  fair  treatment  of  third-country  nationals  residing  legally  in  the 
territory of the Member States and that a more vigorous integration policy should be 
geared to granting them rights and obligations comparable to those of EU citizens.  

Council  Regulation  (EC)  No  859/2003  of  14  May  2003  extended  the  provisions  of 
Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 on the coordination 
of Member States' statutory social security schemes to the nationals of third countries 

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2 
3 
4 
5 
6 

OJ C [..] of [..], p. [..]. 
OJ C [..] of [..], p. [..]. 
OJ C [..] of [..], p. [..]. 
OJ C [..] of [..], p. [..]. 
OJ C 154, 5.6.2000, p. 63. 
OJ C 339, 31.11.1991, p. 82. 

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(4) 

(5) 

(6) 

(7) 

(8) 

(9) 

who  were  not  already  covered  by  these  provisions  solely  on  the  ground  of  their 
nationality7. 

Regulation  (EC)  No  883/2004  of  the  European  Parliament  and  of  the  Council  of  29 
April 2004 on the coordination of social security systems8 replaces Regulation (EEC) 
No  1408/71.  Regulation  (EC)  No  […]  replaces  Regulation  (EEC)  No  574/72. 
Regulations  (EEC)  No  1408/71  and  (EEC)  No  574/72  shall  be  repealed  with  effect 
from  the date  of application of  Regulation  (EC)  No  883/04  and  Regulation  (EC)  No 
[…]. 

Regulation  (EC)  No  883/2004  and  its  implementing  Regulation  significantly  update 
and  simplify  the  coordination  rules  for  insured  persons  as  well  as  social  security 
institutions.  For  the  latter,  the  updated  coordination  aims  to  accelerate  and  facilitate 
the  processing  of  data  on  insured  persons'  rights  to  benefits  and  to  reduce  the 
corresponding administrative costs. 

In order to avoid a situation where employers and national social security bodies have 
to  manage  complex  legal  and  administrative  situations  concerning  only  a  limited 
group  of  persons,  it  is  important  to  enjoy  the  full  benefits  of  modernisation  and 
simplification  in  the  field  of  social  security  by  making  use  of  a  single  legal 
coordination  instrument  in  the  form  of  Regulation  (EC)  No  883/2004  and  its 
implementing Regulation. 

Hence,  it  is  necessary  to  adopt  a  legal  instrument  to  replace  Regulation  (EC)  No 
859/2003  with  the  basic  aim  of  substituting  the  application  of  Regulation  (EEC)  No 
883/2004 for Regulation (EC) No 1408/71. 

The  application  of  Regulation  (EEC)  No  883/2004  and  Regulation  (EC)  No  […]  to 
nationals of third countries who are not already covered by these provisions solely on 
the ground of their nationality must 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 883/2004  and  Regulation  (EC)  No  […]  are, 
by  virtue  of  this  Regulation,  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. 

(10)  The provisions of Regulation (EEC) No 883/2004 and Regulation (EC) No […] shall 
not apply 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. 

(11)  The continued right to unemployment benefit, as laid down in Article 64 of Regulation 
(EC)  No  883/04,  is  subject  to  the  condition  of  registering  as  a  job-seeker  with  the 
employment  services  of  each  Member  State  entered.  Those  provisions  may  only 
therefore  apply  to  a  third-country  national  provided  he/she  has  the  right,  where 
appropriate  pursuant  to  his/her  residence  permit  or  long-term  resident  status,  to 

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OJ L 124, 20.5.2003, p.1. 
OJ L 166, 30.4.2004, p.1. 

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register as a job-seeker with the employment services of the Member State entered and 
the right to work there legally. 

(12)  Given  that  Regulation  (EC)  No  859/03  shall  be  repealed  as  of  the  date  of  entry  into 
force  of  Regulation  (EC)  No  883/04  and  Regulation  (EC)  No  […],  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.  

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

(14)  Since  the  objectives  of  the  proposed  action  cannot  be  sufficiently  achieved  by  the 
Member States on account of cross-border situations and can therefore, by reason of 
the Community scale of the proposed action, be better achieved at Community level, 
the  Community  may  take  measures  in  accordance  with  the  principles  of  subsidiarity 
enshrined  in  Article  5  of  the  Treaty.  In  accordance  with  the  principle  of 
proportionality, as set out in that Article, this Regulation does not go beyond what is 
necessary to achieve those objectives. 

(15) 

In  accordance  with  Articles  1  and  2  of  the  Protocol  on  the  position  of  Denmark, 
annexed to the Treaty on European Union and to the Treaty establishing the European 
Community, Denmark does not take part in the adoption of this Regulation and is not 
bound by it nor subject to its application. 

HAS ADOPTED THIS REGULATION: 

Article 1 

The provisions of Regulation (EEC) No 883/04 and Regulation (EC) No […] shall apply to 
nationals  of  third  countries  who  are  not  already  covered  by  these  provisions  solely  on  the 
ground  of  their  nationality,  as  well  as  to  members  of  their  families  and  to  their  survivors, 
provided  they  are  legally  resident  in  the  territory  of  a  Member  State  and  are  in  a  situation 
which is not confined in all respects within a single Member State. 

Article 2 

1. 

2. 

3. 

This  Regulation  shall  not  create  any  rights  in  respect  of  the  period  before  1  June 
2003. 

Subject  to  the  provisions  of  paragraph  1,  any  period  of  insurance  and,  where 
appropriate,  any  period  of  employment,  self-employment  or  residence  completed 
under  the  legislation  of  a  Member  State  before  the  date  of  entry  into  force  of  this 
Regulation  shall  be  taken  into  account  for  the  determination  of  rights  acquired  in 
accordance with the provisions of this Regulation 

Subject  to  the  provisions  of  paragraph  1,  a  right  shall  be  acquired  under  this 
Regulation  even  if  it  relates  to  a  contingency  arising  prior  to  the  date  of  entry  into 
force of this Regulation. 

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4. 

5. 

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. 

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

Article 3 

This Regulation shall enter into force on the third day following that of its publication in the 
Official Journal of the European Union. 

It  shall  be  applicable  as  of  the  date  of  entry  into  force  of  the  Regulation  implementing 
Regulation (EC) No 883/2004. 

Regulation (EC) No 859/2003 shall be repealed from that date. 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at Brussels, […] 

For the Council 

The President 
[…] 

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