Opinion of the European Economic and Social Committee on the 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 COM(2007) 439 final — 2007-152 (CNS)
Date: 2008-01-16
Institutions: European Economic and Social Committee
Subjects: EU Member State, foreign national, social-security benefit, social-security harmonisation

C 151/50

EN

Official Journal of the European Union

17.6.2008

Opinion of the European Economic and Social Committee on the 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

COM(2007) 439 final — 2007-152 (CNS)

(2008/C 151/15)

On 5 October 2007, the Council decided to consult the European Economic and Social Committee, under
Article 262 of the Treaty establishing the European Community, on the

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 nation-
ality

The Section for Employment, Social Affairs and Citizenship, which was responsible for preparing the
Committee's work on the subject, adopted its opinion on 19 December 2007. The rapporteur was
Mr Rodríguez García-Caro.

At its 441st plenary session, held on 16 and 17 January 2008 (meeting of 16 January), the European
Economic and Social Committee adopted the following opinion unanimously.

1. Conclusions

The Committee welcomes the proposal for a Regulation
1.1
extending the provisions of Regulation (EC) 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, as it represents a step forward in ensuring
for EU citizens and third-country nationals
treatment
equal
residing legally in the EU.

The Committee therefore hopes

1.2
the following
comments, summarising the points made later in this opinion,
will be taken into account:

that

1.2.1
under no circumstances should Regulation 859/2003
and therefore Regulation 1408/71 and its implementing regu-
lation be allowed to remain in force;

1.2.2
the text replacing Regulation 859/2003 should not
contain an annex with special provisions permitting exclusions
to the application of Regulation 883/2004;

the opinion of

1.2.3
the European Economic and Social
Committee, as the representative of organised civil society in the
European Union, should always be required when such provi-
sions are considered.

2. Introduction

In April 1991,

the European Economic and Social
2.1
Committee,
in its own-initiative opinion on the Status of
migrant workers from third countries (1), expressed its support
for equal treatment in the social field between Community and
third-country nationals.

In October 1999, the Tampere European Council stated
2.2
that fair treatment should be given to third-country nationals

(1) OJ C 339, 31.12.1991 (rapporteur: Mr Amato).

residing legally in the Member States, and their rights and duties
should be equivalent to those of EU citizens themselves. Logi-
cally, these rights include freedom of movement and the socio-
occupational consequences thereof.

2.3
Article 63 of the Treaty Establishing the European Com-
munity states that the Council, after the Amsterdam Treaty
enters into force, will 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’ (2). These measures concern the right to residence and
freedom of movement of these nationals.

2.4 May 2003 saw the publication of Regulation (EC) No
859/2003 (3) extending the provisions of Regulation (EEC) No
1408/71 and Regulation (EEC) No 574/72 to nationals of third
countries who are not already covered by those provisions
solely on the ground of their nationality (4). This built on the
mandate set by Article 63 TEC and extended the provisions of
the regulations on social security for third-country nationals,
their family members and survivors of EU citizens who, as
third-country nationals, are residing legally in the EU.

2.5
In 2004, Regulation 883/2004 on the coordination of
social security systems was adopted, and it was established that
Regulation 1408/71 would be repealed when the implementing
regulation for the former text was adopted and published. If the
proposed Regulation covered by this opinion were not adopted,
then the third-country nationals residing legally in the EU would
remain subject to the provisions of Regulation 1408/71 and
would not benefit from the simplification and improvements
brought by Regulation 883/2004; therefore, paradoxically, two
regulations on social security would exist, one of which would
apply only to third-country nationals.

(2) Consolidated version of the Treaty Establishing the European Com-

munity.

(3) OJ L 124, 20.5.2003.
(4) Regulation 883/2004 already covers stateless persons, refugees and

family members and survivors of Community citizens.

17.6.2008

EN

Official Journal of the European Union

C 151/51

3. Summary of the proposal

3.1
The proposed Regulation comprises three articles and
may, like its predecessor, include an annex which does not form
part of the current proposal. The text of the articles repeats
almost literally that of the Regulation which is being replaced.

3.2
Article 1 sets out the scope of the Regulation, which,
logically, applies to third-country nationals, members of their
families and their survivors residing legally in a Member State
and not already covered by Regulation 883/2004.

3.3
Article 2 sets out the same provisos as current Regu-
lation 859/2003, referring to rights dating from before 1 June
2003, the date on which the current Regulation came into
force.

3.4
Article 3 sets the date on which the Regulation will
come into force and provides for the repeal of Regulation
859/2003 on that same date.

4. Comments

The Committee welcomes the proposal and reiterates its
4.1
unconditional support for the extension of
the principle of
equal treatment for EU nationals and third-country nationals in
the social field, and remains convinced that such equal treat-
ment will make it easier for migrants from third countries to
gradually become integrated into the Member States of the EU.

4.2
The Committee welcomes the fact that, in the context of
the proposal for a Regulation extending the provisions of Regu-
lation (EC) 883/2004 and its implementing Regulation to
nationals of third countries who are not already covered by
its
these provisions solely on the ground of their nationality,
opinion was requested by the Council.
the
In this respect,
Committee does not understand why its opinion was not
sought in the course of proceedings for Regulation 859/2003,
and why it was not able to express its position on such an
important subject.

Brussels, 16 January 2008.

4.3
Notwithstanding the matters on which the Committee's
opinion is required, the Committee feels that its opinion should
be taken into account whenever issues of a social nature are
under discussion, especially if they relate to provisions on social
services within the context of social security.

4.4
One of the recitals of Regulation 859/2003 stresses, in
accordance with Article 3 of the Protocol on the position of the
United Kingdom and Ireland annexed to the Treaty on European
Union and the Treaty establishing the European Community, the
wish of both Member States to take part in the adoption and
application of this Regulation.

4.5
In the proposed Regulation replacing Regulation
859/2003, there is no mention of this situation in any of the
recitals, which leads the Committee to assume that no commu-
nication has been received from the two States. In this regard,
the Committee hopes that the new Regulation will also be
adopted by these two States, so as to avoid the situation
mentioned in point 2.5 above, whereby Regulation 1408/71
would remain in force in only one or two Member States, and
only with regard to third-country nationals.

4.6
The current Regulation 859/2003 includes an annex
which sets conditions on the application of the Regulation in
two Member States, for certain specific services. The text of the
proposal submitted to the Committee includes no such annex.
This may be due to the fact that no State has wished to include
any exclusive provisions in the Regulation, or that they have not
yet expressed their positions in this regard.

4.7 Whatever the reason for the omission of the annex, the
Committee — in line with the position it expressed over 15
years ago in its own-initiative opinion on the status of migrant
workers from third countries (5) — reiterates is call for equal
treatment between EU nationals and third-country nationals in
the social field, and hopes that no annex be incorporated into
the new Regulation.

The President

of the European Economic and Social Committee

Dimitris DIMITRIADIS

(5) OJ C 339, 31.12.1991 (rapporteur: Mr Amato).