COMMUNICATION FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT  pursuant to Article 294(6) of the Treaty on the Functioning of the European Union  concerning the position of the Council on the adoption of a proposal for a Regulation of the European Parliament and of the Council extending the provisions of Regulations (EC) No 883/2004 and (EC) No 987/2009 to nationals of third countries who are not already covered by these provisions by virtue of their nationality
Date: 2010-09-02
Institutions: European Commission
Subjects: EU Member State, administrative cooperation, exchange of information, foreign national, social legislation, social security, social-security benefit, social-security harmonisation

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EUROPEAN COMMISSION 

Brussels, 2.9.2010 
COM(2010) 448 final 

2007/0152 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the  

position of the Council on the adoption of a proposal for a Regulation of the European 
Parliament and of the Council extending the provisions of Regulations (EC) No 883/2004 
and (EC) No 987/2009 to nationals of third countries who are not already covered by 
these provisions by virtue of their nationality 

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2007/0152 (COD) 

COMMUNICATION FROM THE COMMISSION 
TO THE EUROPEAN PARLIAMENT 

pursuant to Article 294(6) of the Treaty on the Functioning of the European Union 

concerning the  

position of the Council on the adoption of a proposal for a Regulation of the European 
Parliament and of the Council extending the provisions of Regulations (EC) No 883/2004 
and (EC) No 987/2009 to nationals of third countries who are not already covered by 
these provisions by virtue of their nationality 

1. 

BACKGROUND 

Date  of  transmission  of  the  proposal  to  the  EP  and  the  Council 
(document COM(2007) 439 final — 2007/0152(COD): 

23 July 2007 

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

16 January 2008 

Date of the opinion of the European Parliament on the basis of the 
consultation procedure: 

9 July 2008 

Entry  into  force  of  the  Treaty  on  the  Functioning  of  the  European 
Union 

1 December 2009 

Date of first reading in the European Parliament on the basis of the 
ordinary legislative procedure: 

5 May 2010  

Date of adoption of the political agreement by qualified majority: 

7 June 2010  

Date of adoption of the Council's position at first reading 

26 July 2010 

2. 

OBJECTIVE OF THE COMMISSION PROPOSAL 

The objective of the proposal is to extend the provisions of Regulation (EC) No 883/2004 and 
its implementing Regulation (EC) No 987/2009 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 by virtue of their nationality. 

The  proposal  completes  the  process  of  modernisation  that  led  to  Regulations  (EC)  No 
883/2004 and 987/2009, as it extends the new rights, procedures and provisions for electronic 
data exchange established therein to nationals of third countries who are mobile within the EU 
but not covered by the existing Regulations. 

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3. 

COMMENTS ON THE POSITION OF THE COUNCIL 

3.1  Overall position on the Council's position 

The  position  of  the  Council  incorporates  the  two  amendments  proposed  by  the  European 
Parliament  and,  in  addition,  makes  a  number  of  modifications  by  the  Council  to  the 
Commission’s  original  proposal.  All  amendments  and  modifications  are  fully  supported  by 
the Commission. 

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

3.2 
Council's position 

The  European  Parliament  adopted  two  amendments  by  a  legislative  resolution  under  the 
consultation  procedure  on  9  July  2008.  These  were  confirmed  in  a  first  reading  under  the 
ordinary legislative procedure on 5 May 2010. Both these amendments were accepted in full 
in the Council's position. 

Amendment  1  added  a  new  recital  making  reference  to  Article  34(2)  of  the  Charter  of 
Fundamental  Rights of the European Union. The Commission agrees that it is important, in 
the context of this proposal, to recall the right conferred by the Charter on all persons legally 
resident and legally moving in the EU to social security benefits in accordance with EU and 
national law.  

Amendment  2  added  a  new  recital  making  reference  to  promoting  a  high  level  of  social 
protection  and  to  raising  the  standard  of  living  and  the  quality  of  life  in  the  EU.  The 
Commission agrees that it is important to underline these key drivers behind the proposal. 

3.3  Main differences between the Commission’s proposal and the Council's position 

–  Deletion  of  transitional  provisions:  the  Council  has  deleted  Article  2  and  the  associated 
recital 12 in the original proposal, which contained transitional provisions for the entry into 
force  of  the  proposed  Regulation.  The  Council  agreed  that  no  particular  transitional 
provisions  for  the  entry  into  force  of  this  proposal  are  necessary,  since  the  appropriate 
transitional  provisions  are  already  contained  in  Regulation  (EC)  No  883/2004.  The 
Commission supports this simplified approach, in particular as it will ensure that nationals 
of third countries are given the same rights as EU nationals as regards the transition to the 
modernised  Regulations,  for  example  to  request  a  review  of  their  pension  rights  under 
Article 87(3).  

–  Addition of recitals for Ireland and the United Kingdom: the legal basis of the proposal is 
Article 79(2)(b) of the Treaty on the Functioning of the European Union. On the basis of 
Articles 1 to 3 of the Protocol (No 21) on the position of the United Kingdom and Ireland 
in respect of the area of freedom, security and justice, the United Kingdom and Ireland are 
not bound by this proposal unless they give notification that they will take part in it. The 
Council has added recital 17 to indicate that Ireland is taking part in the proposal pursuant 
to  a  letter  of  24  October  2007  and  recital  18  to  indicate  that  the  United  Kingdom  is  not 
taking part. The Commission agrees that inclusion of these two recitals is necessary. 

–  Repeal  of  the  old  Regulation:  the  Council  has  clarified  the  parameters  for  the  repeal  of 
Regulation (EC) No 859/2003 in the new Article 2 of the proposal. Given that the United 
Kingdom will not take part in this proposal but will continue to apply Regulation (EC) No 

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859/2003, it is not possible to repeal the latter completely. The Commission supports the 
change proposed, as it achieves legal clarity on this practical point. 

–  Determination  of  legal  residence:  Regulations  (EC)  No  883/2004  and  (EC)  No  987/2009 
apply to nationals of third countries who are legally resident on the territory of a Member 
State.  However,  determination  of  legal  residence  falls  entirely  outside  the  remit  of  the 
Coordination Regulations and Member States retain the right to determine, in accordance 
with  Union  law,  whether  a  person  is  entitled  to  enter,  remain,  reside  or  work  on  its 
territory. The extra sentence added to recital 10 by the Council underlines this division of 
powers between the Union and its Member States. The Commission agrees to its inclusion. 

–  Clarification  of  application  of  the  criterion  of  ‘legal  residence’  in  case  of  invalidity,  old-
age  and  survivors’  pensions:  recital  13  was  added  by  the  Council  to  clarify  that  the 
condition of legal residence on the territory of the Member State does not apply at the point 
in time when a person who has been subject to the Regulation, or a person deriving rights 
from such a person, applies for a pension based on rights given by the Regulation. What is 
necessary  is  that  the  person  concerned  was  legally  resident  at  the  time  when  such  rights 
were  acquired.  The  Commission  welcomes  this  additional  recital,  which  aims  to  avoid 
misinterpretation,  to  protect  acquired  rights  and  to  ensure  uniform  application  of  the 
proposed Regulation by Member States.  

4. 

CONCLUSION  

The Commission considers that the Council's position improves and refines certain aspects of 
the  Commission’s  proposal.  It  provides  clarification  on  key  practical  legal  issues,  such  as 
repeal  and  transitional  provisions.  In  addition,  it  provides  for  a  clearer  understanding,  and 
hence better protection, of the acquired rights of nationals of third countries (and those who 
derive rights from them) when they are no longer resident in the EU. Inclusion, in full, of the 
European Parliament’s amendments provides a fuller context for the proposal. 

The Commission welcomes the agreement by the Council on this position, which is a major 
step towards attaining the objective of Article 34 of the Charter of Fundamental Rights of the 
European Union, namely that everyone residing and moving legally within the EU is entitled 
to  social  security  benefits.  It  is  also  a  vital  step  towards  the  completion  of  the  legislative 
package of modernised EU social security rules. It guarantees that nationals of third countries 
can benefit from the same improved rights conferred by the modernised rules and simplifies 
processes  for  national  social  security  administrations,  which  will  be  able  to  apply  the  same 
procedures  regardless  of  whether  the  rights  concern  an  EU  national  or  a  national  of  a  third 
country. 

In view of the foregoing, the Commission fully supports the Council's position. 

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