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 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
Date: 2009-01-07
Institutions: European Commission
Subjects: EU Member State, application of EU law, social-security benefit, social-security harmonisation

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 7.1.2009 
COM(2008) 896 final 

2006/0006 (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 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 

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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 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 

1. 

BACKGROUND 

Date  of  transmission  of  the  proposal  to  the  EP  and  the  Council 
(document COM (2006)16 final — 2006/0006(COD): 

31 January 2006 

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: 

15 October 2008 

Date of adoption of the common position: 

17 December 2008 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The  objective  of  the  proposal for an implementing Regulation is to complete the process of 
modernising  the  existing  rules  in  this  field,  thus  replacing  the  current  implementing 
Regulation1. It aims, in particular, to define for all the parties involved (insured persons, their 
employers, social security institutions and the competent authorities of the Member States) the 
procedures for implementing the rules set out in the basic Regulation (EC) No 883/20042. The 
proposal is based on Articles 42 and 308 of the EC Treaty and requires unanimity. 

The  proposal  completes  the  modernisation  accomplished  through  the  basic  Regulation  and 
seeks  to  improve  current  procedures  by  simplifying  and  clarifying  them.  The  proposal  also 
clarifies the rights and obligations of the various parties. In all parts of the Regulation, new 
structured procedures and processes provide for a platform for enhanced cooperation between 
institutions  and  promote  transparency  and  mutual  trust.  This  enhanced  cooperation  is 
supported  by  a  new  system  of  electronic  data  exchange  between  the  Member  States,  which 
improves efficiency and accuracy. 

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2 

Council  Regulation  (EEC)  No  574/72  of  21  March  197  laying  down  the  procedure  for  implementing 
Regulation  No  1408/71  on  the  application  of  social  security  schemes  to  employed  persons,  to  self-
employed persons and to their families moving within the Community, OJ L 74, 27.3.1972, p.1. 
OJ L166, 30.4.2004, corrected version in OJ L 200, 7.6.2004, p.1. 

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3. 

ANALYSIS OF THE COMMON POSITION 

3.1  Overall position on the Council common position 

The  common  position  of  the  Council  takes  on  board  a  significant  number  of  amendments 
proposed by the Parliament and incorporated into the Commission’s amended proposal. The 
Commission accepted all EP amendments, except amendments 26 and 55. 

The Commission’s positive assessment of the Council common position is based on a close 
monitoring  of  the  provisions  in  the  light  of  the  four  underlying  principles  of  the 
Commission’s proposal:  

–  organising  more  effective  and  closer  cooperation  between  social  security  institutions  to 

enable all stakeholders to benefit from the modernisation of Regulation 883/04; 

–  simplifying the implementing Regulation; 

–  improving  the  transparency  of  the  financial  procedures  between  the  institutions  and  in 

respect of persons covered by the Regulation;  

–  flexibility and effectiveness in setting the rules. 

The  Commission  welcomes  the  Council’s  efforts  in  taking  on  board  the  EP  amendments  as 
comprehensively as possible. Most of them have been accepted in substance. The remaining 
differences  are  about  phrasing  and  terminology  due  to  the  need  to  ensure  consistency 
throughout  the  Regulation.  As  a  result  of  the  length  of  the  negotiation  process  (six 
Presidencies) and the complexity and number of provisions, a thorough screening of the text 
took  place  under  the  last  Presidency.  The  Commission  fully  endorses  this  ‘cleaning-up’ 
exercise as it aims to ensure consistency throughout the text and improve legal certainty. 

Other  differences  concern  technical  aspects,  in  particular  as  regards  the  technological 
requirements for electronic data exchange. Most of the changes result from experts’ work in 
this field, for example the definition of an ‘electronic contact point’ in Article 1(2) (a), Annex 
IV and the provision for a transitional period for electronic data exchange in Article 96. The 
Commission supports these technical changes. 

Overall,  the  Commission  considers  that  the  vast  majority  of  the  modifications  made  by  the 
Council contribute to improving the processes and procedures in order to provide the benefits 
in a speedier and more efficient way (see in particular Article 2(1); Article 3(2), Articles 3 to 
7 and Articles 16, 17, 28, 35, 44 and 90 dealing with information). The changes also usefully 
clarify further the roles and responsibilities of the various parties (see for example Article 14 
on  posting  of  workers,  Article  26  on  scheduled  treatment,  Article  56  on  unemployment 
benefits  and  Article  88  dealing  with  medical  examinations  and  administrative  checks).  The 
Commission  also  considers  that  the  text  of  the  Council  common  position  maintains  the 
delicate  balance  between  the  rights  and  obligations  of  individuals  compared  with  the 
prerogatives of the social security institutions and competent authorities. 

European Parliament amendments included in full, in part, or in principle in the 

3.2 
amended proposal and included in full, in part, or in principle in the common position 

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The  Council  was  able  to  accept  145  of  the  162  amendments,  either  wholly  or  partially 
included into the Commission’s amended proposal, namely amendments No 2, 4, 5, 7-8, 12, 
14,  17-25,  27-34,  36-47,  49-54,  56-71,  73-78,  80-88,  90-107,  109-132,  134-146,  147  (first 
part), 148 (first part), 149, and 152-162.  

The Council also accepted, subject to redrafting, the principles underlying amendments No 3 
(new recital 8a), 6 and 9 (definitions of ‘access point’ and ‘standardised electronic message’), 
10 (reference to the disabled introduced alongside the reference to the elderly), 11 (rules for 
institutions),  15  (exchange  of  personal  data  between  national 
exchanges  between 
administrations  and  the  protection  of  such  data),  16  (rules  for  exchanges  between 
beneficiaries  and  institutions),  26  (provisional  application  of  legislation  and  provisional 
granting of benefits), 28 (administrative agreements between two or more Member States), 48 
(procedure for application of Article 13 of the basic Regulation), 72 (deadline for replying to 
a  request  for  authorisation  of  medical  treatment  in  another  Member  State),  97  and  98 
(additional provisions for the calculation of benefits). 

European Parliament amendments not included in the amended proposal and not 

3.3 
included in the Council common position 

–  Amendment  No  15  (Article  3(2))  —  exchange  of  personal  data  between  national 
administrations  and  the  protection  of  such  data  —  as  far  as  the  reference  to  Directive 
95/46/EC on processing of personal data and the content of Annex IV to Regulation 883/04 
are concerned. 

–  Amendment No 26 (Article 6(4)) — while in agreement with the Article, the Council and 
the  Commission  were  of  the  view  that  the  text  should  be  further  clarified  as  set  out  in 
Article 6(5) of the common position. 

–  Amendment  No  55  (Article  19(2))  —  this  amendment  provides  that  the  certificate 
determining the legislation applicable will indicate the wages stated by the employer. The 
Council shared the Commission’s view that this goes further than the information needed 
for social security purposes and the objectives of the Regulation. 

3.4  Main  differences  between  the  Commission’s  amended  proposal  and  the  Council 
common position 

–  Electronic exchange of data: in conjunction with Article 4(2), the Council has clarified in a 
new  provision  (Article  96)  the  possibility  for  a  transitional  period  for  electronic  data 
exchanges  between  institutions  of  the  Member  States  and  has  set  out  their  limits.  The 
Commission  supports  this  point  as  it  responds  to  the  needs  of  some  Member  States  to 
prepare  themselves  whilst  ensuring  that  reaping  the  benefits  of  the  electronic  exchange 
would not be deferred beyond a date agreed by all Member States.  

–  Conversion  of  insurance  periods:  Article  13  contains  a  detailed  provision  allowing  the 
Member  States  to  convert  the  period  of  insurance  expressed  in  different  units  for  the 
purposes  of  aggregation.  The  Commission’s  proposal  aimed  to  simplify  this  provision 
derived  from  Regulation  574/72.  It  was  based  on  the  assumption  that  only  5-day  weeks 
were used. The discussion in Council showed that this was not the case as some Member 
States’ legislation still prescribes calculation (at least for some schemes) on the basis of a 
6-  or  7-day  week  (e.g.  in  the  case  of  self-employed  persons).  The  Commission  therefore 
agrees to include this provision in the text for the time being. The conversion table ensures 

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that the conversion of periods does not entail any loss of insurance periods. Furthermore it 
will be used as a common tool for an automatic calculation process, thereby reducing the 
risk of errors.  

–  Deadlines  for  the  introduction  and  settlement  of  claims  between  Member  States 
(amendments  164  –  167).  The  Council  considered  it  necessary  to  extend  the  deadlines 
proposed  by  the  Parliament  and  the  Commission  for  the  introduction  and  settlement  of 
claims  and  for  the  settlement  of  disputes  (12  months  for  the  introduction  of  claims,  18 
months for the  settlement of  claims and 36 months for the settlement of disputes). Some 
Member  States  were  of  the  opinion  that  any  reduction  of  those  deadlines  could  only  be 
introduced  in  the  light  of  both  experience  and  technological  progress.  The  Commission 
shares  this  approach  to  a  certain  extent.  The  procedure  has  been  improved  and  broken 
down  into  stages.  The  Commission  acknowledges  the  lack  of  experience  with  this  new 
procedure.  Furthermore,  the  Commission  accepts  the  review  clause  introduced  in  Article 
87  because  the  work  currently  carried  out  by  the  Audit  Board,  which  assists  the 
Administrative Commission for the Coordination of Social Security Systems, has already 
produced positive results. Based on the above, the Commission can accept the text of the 
Council common position. 

–  Article  26(6)  —  amendment  79.  The  Commission  supported  the  European  Parliament 
amendment relating to the reimbursement of travel and accommodation costs for a person 
accompanying  a  person  with  disabilities.  However,  according  to  the  European  Court  of 
Justice  case  law  and  taking  into  account  the  limits  of  a  Regulation  which  aims  to 
coordinate  and  not  harmonise  social  security  legislation,  the  Commission  acknowledges 
that it is a matter for national legislation. The position of the Council is in accordance with 
the  current  state  of  law  concerning  travel  costs  that  are  inseparable  from  the  medical 
treatment  of  the  insured  person.  The  Commission  therefore  accepts  the  Council  common 
position  on  this  point.  The  situation  of  disabled  patients  and  accompanying  persons  (and 
also  persons  accompanying  children  as  regards  their  travel  and  accommodation  costs) 
could  be  dealt  with  through  another  legislative  instrument  with  a  legal  basis  aimed  at 
approximating national legislations. 

4. 

CONCLUSION 

The Commission has been careful to ensure that individual rights are maintained, for instance 
in the fields of occupational diseases, accidents at work and family benefits. The Commission 
recognises the difficulty of this task given the diversity and specificities of the national social 
security legislation of the 27 Member States. The Commission agrees that a certain degree of 
flexibility is necessary in the procedures, for instance with regard to time limits.  

The Commission emphasises that the agreement to improve cooperation between institutions 
of the Member States through a common and secure network for the electronic exchange of 
information  for  social  security  purposes  (EESSI)  is  a  major  feature  of  the  modernised 
coordination  under  Regulation  883/04.  Cooperation  between  social  security  institutions  on 
financial matters has been clarified and better structured.  

The Commission considers that the Council common position improves some of the measures 
contained  in  the  Commission’s  proposal.  In  particular,  it  clarifies  certain  criteria  with  the 
result that some of the key concepts set out in the basic Regulation will be implemented in a 
more  homogenous  way,  such  as  determination  of  the  legislation  applicable  or  posting  of 

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workers. This represents progress for all parties involved. The Commission also notes that the 
Council common position largely takes account of the position of the European Parliament. 

The  Commission  considers  the  compromise  reached  by  the  Council  on  the  most  sensitive 
issues as the start of a dynamic process to allow all Member States to align themselves with 
the position of the European Parliament. The Commission recognises the value of this process 
and will endeavour to pursue and contribute to it. 

Lastly,  the  adoption  of  this  Regulation  is  a  prerequisite  to  make  it  possible  for  Regulation 
883/04 to become applicable in 2010. 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 gives overall support to the Council common position. 

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