Communication from the Commission to the European Parliament pursuant to the second subparagraph of Article 251 (2) of the EC Treaty concerning the common position of the Council on the adoption of a Regulation amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the contents of its annexes
Date: 2009-01-07
Institutions: European Commission
Subjects: EU law, free movement of persons, proposal (EU), social security, social security legislation, social-security harmonisation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.1.2009 
COM(2008)897 final 

2006/0008 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning 

the common position of the Council on the adoption of a Regulation amending 
Regulation (EC) No 883/2004 on the coordination of social security systems, and 
determining the contents of its annexes 

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2006/0008 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to the second subparagraph of Article 251 (2) of the EC Treaty 

concerning 

the common position of the Council on the adoption of a Regulation amending 
Regulation (EC) No 883/2004 on the coordination of social security systems, and 
determining the contents of its annexes 

1. 

BACKGROUND 

Date  of  transmission  of  the  proposals  to  the  European  Parliament 
and the Council: 

-  concerning 
2006/0008/COD)) 

the  proposal  (COM(2006)  7  final  (document 

24 

January 

2007

-  concerning  the  proposal  (COM(2007)  376  final  (document 
2007/0129 (COD)) 

3 July 2007 

Date  of  the  opinion  of  the  European  Economic  and  Social 
Committee: 

26 October 2006 

Date of the opinion of the European Parliament, first reading: 

9 July 2008 

Date  of  transmission  of  the  amended  proposal  ((COM(2008)  648 
final (document 2006/0008/COD) 

15 October 2008 

Date of adoption of the political agreement: 

Date of adoption of the common position: 

5 November 2008 

17 December 2008 

On  29  April  2004,  the  European  Parliament  and  the  Council  adopted  Regulation  (EC)  No 
883/20041  on  the  coordination  of  social  security  systems  which  is  intended  to  replace 
Regulation (EEC) No 1408/712. 

Regulation  883/2004  includes  Annexes  that  contain  provisions  in  respect  of  individual 
Member States. The contents of certain of these annexes had not yet been determined when 
the Regulation was adopted. 

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OJ L166, 30.4.2004, corrected version in OJ L 200, 7.6.2004, p.1. 
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, OJ 
L  149  of  5.7.1971,  p.  2.  Regulation  last  amended  by  Regulation  (EC)  No 1992/2006  (OJ  L  392  of 
30.12.2006, p. 1). 

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Regulation  883/2004  therefore  provides  that  the  contents  of  its  Annexes  II  (provisions  of 
conventions  which  remain  in  force),  X  (special  non-contributory  cash  benefits)  and  XI 
(special  provisions  for  the  application  of  the  legislation  of  the  Member  States)  should  be 
determined before the date of application of the Regulation. 

Some of the Annexes to Regulation 883/2004 also had to be adapted to take into account the 
requirements  of  the  Member  States  that  have  acceded  to  the  European  Union  since  the 
adoption of the Regulation, as well as recent developments in other Member States. 

Against  this  background,  the  Commission  adopted  two  proposals  for  Regulations  on  24 
January 2006 and 3 July 2007, respectively: 

-  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending 
Regulation (EC) No 883/2004 on the coordination of social security systems, and determining 
the content of Annex XI; 

-  Proposal  for  a  Regulation  of  the  European  Parliament  and  of  the  Council  amending  the 
annexes to Regulation (EC) No 883/2004 on the coordination of social security systems. 

These proposals are based on Articles 42 and 308 of the EC Treaty and require unanimity. 

The  Commission  presented  its  amended  proposal  on  15  October  2008  taking  on  board  the 
amendment of the European Parliament to merge the two original proposals into a single text. 
The procedure concerning the proposal (Document 2007/0129/COD) has been abandoned as a 
result  of  the  incorporation  of  its  contents  into  the  procedure  relating  to  the  first  proposal 
(Document 2006/0008/COD). 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  proposal  for  a  Regulation  determining  the  content  of  Annex  XI  provides  for 
supplementary provisions regarding specific aspects of individual Member States’ legislation 
to ensure that Regulation 883/2004 is applied smoothly in the Member States concerned. In 
accordance  with  the  general  objective  of  simplification,  the  proposal  contains  fewer  entries 
than the corresponding Annex VI in the current Regulation (EEC) No 1408/71. 

Annexes II and X of Regulation 883/2004, which were left empty, had equivalent provisions 
in  Annexes  III  and  IIa  of  Regulation  1408/71.  The  remainder  of  the  Annexes,  which  were 
amended by this proposal, already contain provisions in respect of several Member States, but 
need to be complemented to take account of the Member States which acceded to the EU after 
29 April 2004, the date of adoption of Regulation 883/2004. Some of these Annexes also have 
corresponding  provisions  in  Regulation  1408/71.  However,  Annex  I  Part  1  (advances  of 
maintenance  payments)  and  Annexes  III  and  IV  (special  rules  for  health  care  benefits)  are 
new.  

3. 

COMMENTS ON THE COMMON POSITION 

3.1. 

General observations 

The  common  position  adopted  by  the  Council  on  17  December  2008  largely  takes  into 
account the position of the European Parliament by accepting 69 of the 77 amendments.  

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The Commission accepted all the European Parliament amendments in its modified proposal. 
However, the Council did not accept amendments 6, 11, 12, 20, 23, 24 in relation to Annex III 
and 78 rev. 

3.2. 

Comments with regard to the common position on amendment 20 and derived 
amendments 6, 11, 12, 24 in relation to Annex III 

Annex III of Regulation 883/2004 contains a list of Member States which apply ‘Restriction 
of rights to benefits in kind for members of the family of a frontier worker’ in the competent 
Member State. This annex, despite its negatively-worded title ‘restrictions’, in fact constitutes 
progress  for  many  of  the  persons  concerned  compared  with  their  current  situation  under 
Regulation 1408/71. Under current rules, a member of the family of a frontier worker, who by 
definition  does  not  reside  in  the  competent  Member  State  (that  is,  the  Member  State  of 
employment whose legislation applies as regards access to sickness benefits) is not entitled to 
medical care in the competent Member State.  

After a very difficult negotiation on this point in 2003, and taking into account the need for 
unanimous agreement, a solution was found in order to take account of the flexibility shown 
by  a  lot  of  Member  States  to  grant  a  new  right,  on  the  one  hand,  and  to  accommodate  the 
difficulties of other Member States which were not in a position to do so, on the other. 

Following  this  approach,  Articles  18  (2)  and  24  (2)  of  Regulation  883/04  provide  that  the 
members of  the family of a frontier worker shall be entitled to benefits  in kind during their 
stay in the competent Member State. However, some exceptions to this principle are provided 
for in Annex III.  

Although  the  Commission  would  have  preferred  a  different  outcome,  it  accepted  the 
compromise  because  it  represents  real  progress  for  the  family  members  of  frontier  workers. 
No other approach would have obtained the requisite unanimity in Council. The Commission 
also notes that this approach will allow family members of frontier workers residing in eight 
Member States to benefit from a new right. The Parliament also followed the same approach 
at the time, which made the adoption of Regulation 883/04 possible. 

The Commission supports the European Parliament amendment 20 which aims to extend the 
right  provided  for  by  Article  18  of  Regulation  883/2004  to  all  Member  States  within  five 
years  (Annex  III  should  be  repealed  after  five  years  for  all  Member  States).  During  the 
discussions in Council, some Member States stressed, as a matter of principle and given the 
lack of experience in the application of the Regulation, that the delicate compromise reached 
under  Regulation  No  883/2004  should  not  be  altered.  The  majority  of  the  other  Member 
States were in a position to accept the amendment in a spirit of compromise. Moreover, six 
Member  States,  listed  in  Annex  III,  showed  even  more  flexibility  as  they  were  willing  to 
accept repealing Annex III after four years.  

Against this background, the Council common position provides that: 

- Articles 18(2) and 28(1) of Regulation 883/2004 would be amended to state that Annex III 
will be reviewed five years after its application, and  

- A new paragraph (10a) would be added to Article 87 of Regulation 883/2004 to provide that 
the period of validity of some Member States’ entries in Annex III would be limited to four 
years. 

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The Commission regrets that it has not been possible to achieve more progress on this issue in 
Council.  However,  it  acknowledges  the  efforts  of  the  Presidency  in  this  regard.  The 
Commission  considers  that  the  compromise  reached  by  Council  is  the  start  of  a  dynamic 
process  that  will  allow  all  Member  States  to  align  themselves  with  the  position  of  the 
European  Parliament.  The  Commission,  which  shares  the  position  of  the  European 
Parliament, will endeavour to pursue, and contribute to, this process. For the time being and 
following  a  pragmatic  approach,  the  Commission  accepts  the  compromise  as  it  is  a  step 
forward compared to the current situation of Annex III. 

3.3. 

Comments with regard to Council’s position on amendment 23 

Amendment 23 relates to Annex II to Regulation 883/2004 (Provisions of Conventions which 
remain in force and which, where applicable, are restricted to the persons covered thereby). In 
point 36 of this Annex, under the Portugal-United Kingdom entry, the Parliament includes a 
reference to Article 2(1) of the Protocol on medical treatment of 15 November 1978 which is 
already covered by Annex III of Council Regulation (EEC) No 1408/71. 

This  Protocol  does  not  appear  in  Annex  II  in  the  Council’s  common  position  as  the  two 
Member States concerned have indicated that they have decided not to apply Article 2(1) of 
this Protocol as from 1 September 2008. The Commission takes note of the decision of both 
parties  to  the  Agreement  and  its  consequences  for  the  updating  of  Annex  II  to  Regulation 
883/2004.  

3.4. 

Comments  with  regard  to  Council’s  position  regarding  entries  in  Annex  IV, 
amendment 78 rev 

A  pensioner  who  does  not  reside  in  the  competent  Member  State  (i.e.  the  one  paying  the 
pension and responsible for the health care costs of their pensioners in the Member State of 
residence) is currently entitled only to sickness benefits in his Member State of residence. 

However, under Regulation 883/04, when a Member State is listed in Annex IV, a pensioner 
will  have  the  right  to  return  in  this  Member  State  and  have  access  to  health  care  as  an 
additional  right.  This  means  that  not  only  will  the  competent  Member  State  bear  the  health 
care costs payable to the Member State of residence, but also the cost of sickness benefits for 
the same person in its own territory. 

Italy  was  among  the  entries.  Shortly  after  the  adoption  of  Regulation  883/2004,  the  Italian 
authorities  reassessed  their  position  and  decided  they  were  not  able  to  grant,  for  the  time 
being,  additional  rights  for  pensioners.  Taking  note  of  these  new  developments,  the 
Commission proposed the deletion of the ‘Italy’ entry from Annex IV. In its amendment 78 
rev the European Parliament wishes to maintain the ‘Italy’ entry in Annex IV of Regulation 
883/2004.  

Taking into account the specific nature of Annex IV, the Commission confirms its proposal to 
delete the ‘Italy’ entry. The Commission considers that  if no flexibility is given to Member 
States which choose at a certain point to grant additional rights but afterward need to reassess 
their position (as they  are responsible  for organising and financing  social security systems), 
positive annexes might disappear in the future. 

3.5. 

Other changes made by the Council to the Commission’s proposal  

The Council common position also contains the following changes: 

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- Article 15 of Regulation 883/2004:  

The  terms  ‘auxiliary  staff’  have  been  replaced  by  the  terms  ‘contract  staff’  in  the  common 
position in accordance with the Staff Regulations; 

The Commission welcomes this update of the Regulation. 

- Scheduled treatment in the context of accidents at work or occupational diseases; Article 36 
paragraph 1 of Regulation 883/2004 and paragraph 2: 

The  Council  common  position  provides  that  provisions  dealing  with  sickness  benefits 
(Articles 17, 18(1), 19(1) and 20(1)) shall also apply to benefits relating to accidents at work 
and occupational diseases. 

Paragraph  2  of  Article  36  was  part  of  the  Commission  proposal  for  the  implementing 
Regulation  of  Regulation  883/04  (Article  33).  It  concerns  the  specific  conditions  for  the 
authorisation  of  scheduled  treatment  in  the  context  of  accidents  at  work  or  occupational 
diseases.  This  provision,  which  is  in  favour  of  the  persons  concerned,  was  not  included  in 
Regulation 883/04. The Council agreed to incorporate this provision into the basic Regulation 
rather than into the implementing Regulation. 

The Commission welcomes both provisions as they are in favour of the persons concerned. 

- Article 87(8) of Regulation 883/2004: 

The  modification  introduced  in  the  Council  common  position  in  paragraph  8  of  Article  87 
aims to clarify the way this transitional measure can be applied to all stakeholders. It provides 
for  a  maximum  time  period  of  10  years  during  which  a  person  can  remain  subject  to  the 
legislation  of  a  Member  State  other  than  the  one  determined  in  accordance  with  Title  II  of 
Council Regulation (EEC) No 1408/71. 

The  Commission  can  accept  this  change,  as  fixing  a  maximum  time  period  is  intrinsically 
linked to the idea of a transitional measure. A ten-year period seems an appropriate length of 
time  to  give  both  the  persons  concerned  and  the  institutions  the  opportunity  to  reassess  the 
situation in accordance with the legislation applicable. 

4. 

CONCLUSION 

The Commission has been particularly vigilant to ensure that the individual rights of mobile 
citizens  were  maintained,  for  instance  in  the  field  of  occupational  diseases  and  accidents  at 
work. The Commission notes that the Council common position largely takes account of the 
amendments of the European Parliament. 

On  the  most  sensitive  issues,  the  Commission  considers  that  the  compromise  reached  by 
Council is the start of a dynamic process that will allow all Member States to align themselves 
with the position of the European Parliament. The Commission will endeavour to pursue, and 
contribute to, this process. 

Lastly, the adoption of this Regulation, which fills in the blank annexes of Regulation 883/04 
and  of  the  implementing  Regulation,  is  a  prerequisite  to  make  it  possible  for  Regulation 
883/04 to become applicable in 2010.  

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Regulation 883/04 improves the social security rights of citizens exercising their rights to free 
movement.  Once  in  force,  Regulation  883/04  will  have  a  direct  impact  on  the  daily  life  of 
millions of EU citizens. 

In  view  of  the  above,  the  Commission  can  give  overall  support  to  the  Council  common 
position. 

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