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 COM(2007) 159 final — 2007/0054 (COD)
Date: 2007-10-25
Institutions: European Economic and Social Committee
Subjects: family benefit, free movement of workers, self-employment, social security, social-security harmonisation, wage earner, worker (EU)

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EN

Official Journal of the European Union

16.2.2008

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

COM(2007) 159 final — 2007/0054 (COD)

(2008/C 44/23)

On 7 May 2007, the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the abovementioned proposal.

On 24 April 2007, the Bureau of the European Economic and Social Committee instructed the Section for
Employment, Social Affairs and Citizenship to prepare the Committee's work on the subject.

In view of the urgency of the matter, at its 439th plenary session, held on 24 and 25 October 2007
(meeting of 25 October),
the European Economic and Social Committee appointed Mr Rodríguez
García-Caro (1) rapporteur-general and adopted this opinion by 64 votes in favour, with one abstention.

1. Conclusions

1.1
The European Economic and Social Committee endorses
the amendments put forward in the Annexes to Regulation
No 1408/71 and is convinced that these will help to improve
the Regulation's content and benefit individuals in the EU who
fall within its scope. This support applies most specifically to
those changes that help to bring certain benefits into the field
of coordination, meaning that they will no longer be exceptions
or non-exportable rights.

socio-economic stakeholders representing civil society, has, on
the
an almost annual basis, delivered an opinion on all of
changes that have been made to the Regulation's articles or
Annexes. The Committee has thus played an active role in devel-
oping a tool that is vitally important to guaranteeing the right
to the free movement of workers in particular and of people in
general, throughout all of the EU's Member States. This process
ensured that the rights to certain benefits in the social security
scheme remained in place when people moved across the EU's
internal borders.

for

1.2
As the representative of the social partners and organised
civil society, the European Economic and Social Committee also
wishes to highlight the slowness of the legislative process for
the proposal
a Regulation implementing Regulation
No 883/2004. The Committee would not be delivering this
opinion if the Regulation referred to above had entered into
force. The EESC, therefore, urges the European Parliament and
the Council to speed up the decision-making process as much
as possible and strive to ensure that the new coordination of
social security systems enters into force as swiftly as can be
achieved.

In 2004,

2.3
the most major
the Regulation underwent
change in its history. With the aim of simplifying the text and
improving its content and following a lengthy institutional
debate, the European Parliament and the Council approved a
new Regulation coordinating social security schemes (3) which,
under the number 883/2004, is due to replace the text currently
in force. Nevertheless and because its implementing Regulation
has not yet been adopted, the new text on coordination has not
entered into force, which means that Regulation No 1408/71
remains fully valid.

2. Introduction

2.1
Since its adoption in June 1971, Regulation No 1408/71
has been successively amended, which has adapted and updated
its content. These amendments are due, amongst other things,
to the legislative changes that have taken place in the Member
States, the bilateral agreements adopted between Member States,
consecutive rounds of EU enlargement and the adaptation of
legislation to successive Court of
Justice rulings on social
security.

2.2
Since the EESC adopted its first opinion on this Regu-
lation in January 1967 (2), the Committee, which is made up of

(1) Subject to the approval of the plenary assembly.
(2) OJ C 64, 5.4.1967.

2.4
The Committee has delivered its corresponding Opinions
on both Regulation No 883/2004 on the coordination of social
security schemes (4), and the proposal for a Regulation adopting
the implementing regulations (5). This last proposal
is still
slowly wending its way through the necessary procedures in the
competent institutions.

Because it

2.5
is a living and dynamic text, Regulation
No 1408/71 should incorporate the different amendments that
the Member States make to their national legislation, to ensure
that they are reflected in the Regulation and therefore do not
damage the rights of people moving within the European

(3) OJ L 166, 30.4.2004.
(4) EESC Opinion of 27 January 2000 on coordination of social security
systems; rapporteur: Mr Rodríguez García-Caro (OJ C 75, 15.3.2000).
(5) EESC opinion of 26 October 2006 on the coordination of social
security systems — implementing regulations; rapporteur: Mr Greif
(OJ C 324, 30.12.2006).

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Union. Ultimately, these amendments are intended to update
and improve the coordination of social security systems, making
it easier to implement Community legislation.

affects Ireland and the Netherlands as the result of changes to
their legislation.

2.6
In legal terms, the proposal involves the derogation from
and modification of some of the provisions contained in the
Annexes to the Regulation and is also applicable to the Euro-
pean Economic Area.

3. Content of the proposal

3.1
The proposal for a Regulation affects only some of the
Annexes to Regulation 1408/71, and thus does not concern the
main body of the text, which remains unchanged.

The amendments that have been made reflect the propo-
3.2
sals put
forward by the following Member States: Austria,
Denmark, France, the Netherlands, Hungary, Ireland and Poland.
With the exception of France, all of the amendments are the
result of changes to national legislation.

3.3.8
Annex IV, Part C, which lists the cases where the
double calculation of benefit may be waived, as this will never
lead to a higher result. The heading ‘Hungary’
is withdrawn,
because that country is no longer affected by this factor, as the
result of changes to national
is also
reworded in a way that affects Austria as the result of changes
in its legislation on pensions.

legislation. The text

Annex VI, which sets out

3.3.9
for
applying the legislation of certain Member States. As the result
of changes to national legislation, this affects the texts inserted
by Denmark, the Netherlands and Austria.

special procedures

3.3.10
Annex VIII, which lists the schemes under which
orphans are granted family benefits or supplementary or special
benefits. This affects Ireland, as the result of the changes to its
legislation referred to above.

3.3

The changes affect the following Annexes and States:

4. Comments

3.3.1
Annex I Part I, which defines the terms ‘employed
persons’ or ‘self-employed persons’ where these cannot be deter-
mined from the national legislation. This annex is amended as
the result of legislative changes in Ireland.

Annex I Part

3.3.2
the term ‘family
members’ where national legislation does not enable a distinc-
tion to be drawn between family members and other persons.
This also affects Ireland for the reason given above.

II, which defines

Annex II Part I, which defines the special schemes for
3.3.3
self-employed persons excluded from the scope of the Regu-
lation. The paragraph on France is
reasons
concerning complementary insurance.

reworded for

3.3.4
Annex II Part II, which defines special childbirth or
adoption allowances excluded from the scope of the Regulation.
Where Poland is concerned, the wording is amended to make
the supplement to the childbirth allowance subject to coordina-
tion.

3.3.5
Annex IIa, which lists non-contributory and, therefore,
non-exportable benefits. This again affects Ireland because of
changes to national legislation.

3.3.6
Annex III Part A, which lists the provisions of agree-
ments which continue to apply, despite the existence of Regu-
lation (EEC) No 1408/71. This applies to agreements between
Hungary and Germany and Austria, as the result of changes to
Hungarian pension law.

amendments made

At its plenary session held on 13 and 14 December
4.1
2006, the European Economic and Social Committee adopted
an Opinion on other
to Regulation
No 1408/71 (6). In that opinion, the Committee expressed its
hope that this would be the last set of amendments it would
have to issue an opinion on and that the new implementing
regulation for Regulation No 883/2004 would be adopted
without further delay. Six months on, new amendments have
been made to the Annexes to Regulation No 1408/71, because
the implementing regulation has still not been adopted.

4.2
Nevertheless, the EESC wishes to express its support for
the amendments made to the Regulation's annexes, and is
convinced that these will help to improve the text and ultimately
be of direct benefit to those EU citizens falling within its scope.
The Committee therefore wishes to state its agreement most
specifically with those changes that bring certain benefits into
the sphere of coordination, taking them out of the annexes
listing exceptions to the general implementation of benefits.

4.3
The European Institutions are currently discussing a
number of proposals for regulations, all concerning the coordi-
nation of social security systems. Firstly, the Council
is now
studying chapter by chapter the proposal for a Regulation for
implementing Regulation No 883/2004, on which the EESC has
already delivered its opinion, and will continue to study it
during the Portuguese presidency, whilst in the European Parlia-
ment,
the
proposal for a Regulation to set down the content of Annex XI
of Regulation 883/2004 is being discussed in a process similar
to the one referred to above, with the EESC having issued its

reading. Secondly,

the proposal

is now at

first

3.3.7
Annex IV, Part A, which lists the legislations referred to
in the Regulation, under which the amount of invalidity benefits
is independent of the length of periods of insurance. This also

(6) EESC Opinion of 13 December 2006 on Amendments to Regulation
rapporteur: Mr Rodríguez García-Caro (OJ C 325,

1408/71;
30.12.2006).

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corresponding opinion (7). Account should therefore be taken of
the fact that, when the Regulation on coordination was adopted,
a number of its annexes became redundant due to the adoption
of successive regulations. The final proposal under discussion is
the proposal for a Regulation amending Regulation No 1408/71
— the subject of this opinion.

4.4
Objectively speaking and in relation to the previous
point, the current situation is one of legislative stagnation, in
which amendments to an all but out-of-date regulation are still
being adopted, annexes are still required for the new coordi-
nating regulation, which should have already entered into force
and the adoption process for the new implementing regulation
is an unhappy reminder of the slow progress that beset deci-
sion-making on the Regulation on coordination. For all of the
above reasons, the EESC once again urges the European Parlia-
ment and the Council to make the procedures for the definitive
adoption of both regulations more flexible. By way of a
reminder, it should be pointed out that, as long ago as 1992,
the Edinburgh European Council acknowledged the need to
carry out a general review of legislation with a view to simpli-
fying the rules on coordination. Fifteen years have passed since
that statement was made and the same — non-simplified —
laws are still being used.

Brussels, 25 October 2007.

4.5
The complexity of the laws on the coordination of social
security systems means that the public by and large struggles to
understand them and is unaware of its rights in this area. It
would therefore be useful, taking the opportunity provided by
this opinion, to emphasise the need for national authorities to
develop efficient means of sending the people of their Member
States clear and concise messages informing them of their social
security-related rights when they travel within the EU for what-
ever reason. This lack of information is even more striking in
the context of short trips, whether for leisure or work purposes,
in which any acute health problem can cause people serious
difficulties, because they do not know their rights and the
procedures they have to follow in order to receive immediate
treatment.

Following on from this approach and supporting the
4.6
assertion made in point 4.5. of the Opinion on Annex XI of
Regulation 883/2004 referred to above, the EESC should draw
up an own-initiative opinion to determine what problems exist
in the EU in the provision of health care to individuals moving
within Europe and what proposals should be made to ensure
that the coordination mechanisms work properly.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(7) EESC opinion of 14 March 2007 on The coordination of social security
systems — Annex XI, rapporteur: Mr Greif (OJ C 161, 13.7.2007).