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 Regulation (EC) No 987/2009 laying down the procedure for implementing Regulation (EC) No 883/2004
Date: 2010-12-20
Institutions: European Commission
Subjects: administrative cooperation, electronic government, exchange of information, simplification of formalities, social legislation, social security, social-security benefit, social-security harmonisation

EN 

EN 

   EN 

 
EUROPEAN COMMISSION 

Brussels, 20.12.2010 
COM(2010) 794 final 

2010/0380 (COD) 

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 Regulation (EC) No 987/2009 laying down the procedure for implementing 
Regulation (EC) No 883/2004  

(Text with relevance for the EEA and Switzerland) 

EN 

   EN 

 
 
  
EXPLANATORY MEMORANDUM 

1. 

CONTEXT OF THE PROPOSAL 

Grounds for and objectives of the proposal 

This proposal is intended to update Regulations (EC) No 883/2004 and (EC) No 987/2009 to 
reflect changes in Member  States' national social security legislation and to keep track with 
changes in social reality that affect the coordination of social security systems. 

Moreover,  this  proposal  includes  proposals  from  the  Administrative  Commission  for  the 
Coordination  of  Social  Security  Systems  (hereafter:  Administrative  Commission)  that  are 
aimed  at  improving  and  modernising  the  acquis  in  accordance  with  Article  72  (f)  of 
Regulation (EC) No 883/2004.  

The amendments in this proposal are aimed at guaranteeing legal certainty for stakeholders. 

General context 

The  proposal  concerns  a  regular  update  of  Regulations  (EC)  No  883/2004  and  (EC)  No 
987/2009. Its aim is to ensure proper EU coordination of national social security systems. It 
reflects legal changes at national level and takes stock of recent developments in cross-border 
mobility that affect the coordination of social security systems. 

Existing provisions in the area of the proposal 

The  existing  provisions  are  laid  down  in  Regulation  (EC)  No  883/2004  (last  amended  by 
Regulation (EC) No 988/2009) and Regulation (EC) No 987/2009.  

Regulations (EC) No 883/2004 and (EC) No 987/2009 have to be adjusted to keep them up to 
date with the developments in national legislation and the changes in social reality that affect 
the  coordination  of  social  security  systems.  In  addition,  relevant  proposals  aiming  at 
improving  the  coordination  system  were  received  from  the  Administrative  Commission. 
These proposals, together with other technical adaptations to the text are incorporated in this 
proposal.  This  proposal  will  also  update  and  amend  the  references  to  national  legislation  in 
certain annexes to the Regulations. 

Consistency with other policies and objectives of the Union 

Not applicable. 

2. 

RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND 
IMPACT ASSESSMENTS 

Consultation of interested parties 

211 

Consultation methods, main sectors targeted and general profile of respondents 

EN 

2 

   EN 

Member  States  were  invited  to  submit  proposals  for  miscellaneous  amendments  to  the 
Regulations  for  2010.  The  Administrative  Commission  in  addition  requested  amendments 
updating and clarifying Regulations (EC) No 883/2004 and (EC) No 987/2009. 

Summary of responses and how they have been taken into account 

The  proposals  which  are  considered  to  be  compatible  with  EU  law  and  to  which  the 
Administrative Commission agreed are incorporated in this proposal. 

221 

Scientific/expertise domains concerned 

Social security coordination. 

222 

Methodology used 

Discussion  in  two  meetings  of  the  Administrative  Commission  in  2010  and,  where  needed, 
further  discussion  to  obtain  clarification,  particularly  on  the  details  of  national  legislation, 
with representatives of the Administrative Commission from the Member States concerned. 

223 

Main organisations/experts consulted 

Administrative  Commission,  as  well  as  representatives  from  the  individual  Member  States 
concerned. 

2249 

Summary of advice received and used 

The  existence  of  potentially  serious  risks  with  irreversible  consequences  has  not  been 
mentioned. 

Agreement of the Administrative Commission to update, complete and improve the text and 
to update certain entries for Member States in the annexes to Regulations (EC) No 883/2004 
and (EC) No 987/2009. 

226 

Means used to make the expert advice publicly available 

None. 

Impact assessment 

As of 1 of May 2010, two modernised Regulations (EC) No 883/2004 and (EC) No 987/2009 
on  the  coordination  of  social  security  systems  are  applied  in  all  EU  Member  States.  The 
modernised  social  security  Regulations  are  the  result  of  ten  years  of  negotiations  between 
Member  States.  The  need  for  modernisation  came,  among  others,  from  changes  in  national 
legislation and from the case law of the Court of Justice of the European Union (CJEU).  

Member States frequently amend their national social security legislation. As a consequence, 
the  references  made  to  national  legislation  in  EU  legislation  coordinating  social  security 
systems  can  become  outdated  which  will  create  legal  uncertainty  for  stakeholders  when 
applying the Regulations. 

The references in Regulations (EC) No 883/2004 and (EC) No 987/2009 therefore need to be 
updated  to  correctly  reflect  legal  changes  at  national  level  and  changes  in  social  reality 
correctly. The Regulations can be updated only by means of a Regulation.  

EN 

3 

   EN 

 
One  of  the  main  features  of  the  modernised  coordination  provisions  is  simplification. 
Simplifying  the  Regulations  makes  them  easier  to  interpret  and  reduces  the  scope  for 
conflicting views. To ensure that the simplified provisions fully protect citizens' rights, some 
provisions  needed  to  be  amended,  in  particular  in  the  field  of  applicable  legislation  and 
unemployment  benefits.  In  the  provision  on  determining  the  applicable  legislation  for  the 
situation  where  a  person  is  working  in  two  or  more  Member  States,  the  criterion  of 
"substantial part of the activity" will be extended and the notion of "registered office or place 
of  business"  will  be  concretized.  Amendments  in  the  field  of  unemployment  benefits  are 
needed  to  provide  a  satisfactory  solution  in  the  situation  where  a  self-employed  person  has 
been insured for unemployment in the Member State of last activity but returns to his Member 
State  of  residence  which  does  not  have  any  unemployment  insurance  for  self-employed 
persons. 

The last few years have shown an increased  tendency  towards  new  forms  of  mobility.  New 
labour  supply  structures  can  be  noticed  amongst  others  in  air  transport,  where  companies 
provide  their  services  from  so-called  "home  bases"  in  different  Member  States.  The 
Commission reflects on preparing a Paper in 2011 on changed patterns of mobility in relation 
to the right of free movement of workers and social security in which it will identify which 
specific  actions  the  Commission  needs  to  take  in  order  to  better  respond  to  the  needs  of 
different types of migrant workers. Without wanting to anticipate the Paper, the Commission 
deems it appropriate to already specify the notion of "registered office or place of business" 
for  aircrew  members,  in  order  to  assist  the  institutions  in  determining  the  location  of  the 
"registered office or place of business" and to facilitate the application of Regulation (EC) No 
883/2004  in  this  sector.  Particularly  relevant  here  is  that  the  concept  of  "home  base"  has 
already  been  defined  in  Regulation  (EC)  1899/2006  of  the  European  Parliament  and  of  the 
Council  of  12  December  2006  amending  Council  Regulation  (EEC)  No  3922/91  on  the 
harmonisation  of  technical  requirements  and  administrative  procedures  in  the  field  of  civil 
aviation and is already in use in that sector. 

Although  Regulations  (EC)  No  883/2004  and  (EC)  No  987/2009  are  applied  as  of  1  May 
2010,  they  reflect  the  state  of  play  of  Member  States'  legislation  of  26  January  2004  (for 
Regulation (EC) No 883/2004) and of 17 December 2008 (for Regulation (EC) No 987/2009). 
It  is  in  the  interest  of  the  citizens  concerned  that  the  Regulations  are  updated  within  a 
reasonable time after changes have been made to national legislation of the Member States. 
Only Regulations that are up to date with the developments in national legislation and whose 
provisions are clear  and complete can guarantee transparency and  certainty for stakeholders 
and provide full protection for mobile citizens. 

This proposal facilitates the coordination of social security systems in the Member States and 
contributes  to  the  protection  of  citizens  migrating  within  the  EU.  Most  of  the  changes  have 
been  proposed  by  the  Member  States  and  the  by  Administrative  Commission.  In  terms  of 
workload  or  costs,  it  is  estimated  that  the  proposed  amending  Regulation  will  make  no 
substantive  difference  to  the  present  situation  of  social  security  coordination  for  institutions 
and administrations, workers or employers or non-active citizens. 

3. 

LEGAL ELEMENTS OF THE PROPOSAL 

Summary of the proposed action 

EN 

4 

   EN 

This proposal supplements, clarifies and updates some of the provisions of Regulations (EC) 
No  883/2004  and  (EC)  No  987/2009  to  reflect  changes  in  Member  States'  national  social 
security legislation and changed patterns of mobility affecting the coordination of the social 
security  systems.  The  changes  will  facilitate  the  efficient  application  of  the  EU  legislation 
coordinating social security schemes and improve the protection of individuals moving within 
the EU. 

Legal basis 

Article 48 TFEU. 

Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the EU. 

The objectives of the proposal cannot be sufficiently achieved by the Member States for the 
following reasons. 

EU action in the form of coordination measures in the field of social security is required by 
Article  48  of  the  TFEU  and  is  necessary  to  guarantee  that  the  right  to  free  movement  laid 
down in the TFEU can be fully exercised. Without such coordination, there would be a risk 
that freedom of movement would be inoperable, since people would be less likely to make use 
of  this  right  if  it  meant,  in  essence,  losing  social  security  rights  already  acquired  in  another 
Member  State.  Existing  EU  legislation  on  social  security  does  not  aim  at  replacing  the 
different national systems. It should be stressed that the proposed amending Regulation is not 
a harmonisation measure and does not go beyond what is necessary for effective coordination. 
The  proposal  basically  aims  at  updating  the  existing  coordinating  rules  to  reflect  the  legal 
changes  that  have  been  made  at  national  level  and  to  implement  changes  that  have  become 
necessary due to changing social reality. It also aims to complement and improve the text of 
the  Regulations  with  the  aim  of  protecting  citizens'  rights  when  they  are  moving  within  the 
EU. 

Even  though  the  proposal  is,  therefore,  mainly  based  on  contributions  by  Member  States, 
Member States could not adopt such provisions at national level since this could potentially 
conflict  with  the  Regulations.  Therefore  it  is  necessary  to  ensure  that  the  bodies  of  and 
annexes to the Regulations are properly adapted so that the Regulations can apply effectively 
within the EU. 

Social security coordination concerns cross-border situations where no Member State can act 
alone.  The  EU  coordinating  legislation  replaces  the  numerous  existing  bilateral  agreements. 
This not only simplifies social security coordination for Member States but also ensures equal 
treatment  of  EU  citizens  who  are  insured  in  accordance  with  national  social  security 
legislation. 

EU action will better achieve the objectives of the proposal for the following reasons(s): 

Coordination of social security schemes makes sense only at EU level. The aim is to ensure 
that  coordination  of  social  security  schemes  operates  effectively  throughout  all  Member 
States. This is based on, and justified by, the free movement of persons within the EU. 

EN 

5 

   EN 

There are no qualitative indicators, but the Regulations concern each EU citizen moving, for 
whatever reason, within the territory of the EU. 

The proposal is purely a coordinating measure which can be taken only at EU level. Member 
States remain responsible for organising and financing their own social security systems.  

The proposal therefore complies with the subsidiarity principle. 

Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s): 

Regulations (EC) No 883/2004 and (EC) No 987/2009 require this form of action because a 
Regulation may be amended only by a Regulation. The action does not touch upon the system 
of coordination itself. Member States remain solely responsible for organising and financing 
their national social security schemes. 

The proposal makes it easier for the Member States and their institutions to coordinate social 
security  systems  and  aims  at  protecting  the  individuals  moving  within  the  EU,  by  updating 
and  improving  certain  provisions  of  Regulations  (EC)  No  883/2004  and  (EC)  No  987/2009 
and  some  of  the  annexes  to  Regulation  (EC)  No  883/2004.  The  amended  provisions  are 
mainly based on proposals by the Member States which means that any potential financial and 
administrative  burden  is  minimised  and  proportionate  to  the  abovementioned  objective. 
Conversely, without such an update of Regulations (EC) No 883/2004 and (EC) No 987/2009 
the financial and administrative burdens would be likely to be greater, as the provisions would 
not meet changing needs of the Member States. 

Choice of instruments 

Proposed instruments: Regulation. 

Other means would not be adequate for the following reason(s): 

There is no alternative because a Regulation may be amended only by a Regulation. 

4. 

BUDGETARY IMPLICATION 

The proposal has no implications for the EU budget. 

5. 

OPTIONAL ELEMENTS 

European Economic Area and Switzerland 

The  proposed  act  has  relevance  for  the  European  Economic  Area  and  for  Switzerland  and 
should therefore be extended to the European Economic Area and Switzerland. 

Detailed explanation of the proposal 

Article 1 

Article 1 concerns the amendments to Regulation (EC) No 883/2004. 

EN 

6 

   EN 

A. Amendment of Article 9  

1. Amendment of Article 9(1) 

In Article 9, the reference to Article 1, paragraph (1) in Article 9(1) of Regulation (EC) No 
883/2004 should be read "Article 1, letter (l)". Furthermore, the notification of a contractual 
provision in accordance with the second subparagraph of Article 1(l) of Regulation (EC) No 
883/2004 is to be made separately from, and is a prerequisite for, the declaration to be made 
in accordance with Article 9 of Regulation (EC) No 883/2004. 

2. Amendment of Article 9(2) 

Article 9(2) of Regulation (EC) No 883/2004 should be amended in order to bring it in line 
with the second subparagraph of Article 71(2) of Regulation (EC) No 883/2004. 

B. Amendment of Article 12(1) 

The proposed amendment clarifies that a posted person cannot be replaced by another posted 
person  after  the  posting  period  of  the  first  person  expires.  The  word  "posted"  was  omitted 
here by accident. 

C. Amendment of Article 13(1) 

In  the  current  text  of  Article  13(1),  the  condition  of  pursuing  a  "substantial  part"  of  the 
activity does not apply to the situation in which a person is working in two or more Member 
States  for  various  undertakings  or  employers.  This  is  not  in  line  with  the  intention  when 
negotiated  in  Council,  especially  not  for  the  situation  in  which  the  activity  pursued  in  the 
Member  State  of  residence  is  relatively  small.  The  purpose  of  this  amendment  is  to  make 
clear that the condition of pursuing a "substantial part" of the activity also applies to a person 
who  normally  pursues  an  activity  for  various  undertakings  or  employers  in  two  or  more 
Member  States.  In  the  situation  where  the  condition  of  "substantial  part"  of  the  activity  has 
not been fulfilled in the Member State of residence, the applicable legislation is the legislation 
of  the  other  Member  State  in  which  the  registered  office  or  place  of  business  of  the 
undertaking(s)  or  employer(s)  is  or  are  located.  If  it  is  not  possible  to  appoint  one  Member 
State  in  which  registered  office  or  place  of  business  is  situated,  e.g.  when  there  are  two  or 
more  employers  who  are  established  in  two  different  Member  States  outside  the  Member 
State  of  residence,  the  legislation  of  the  Member  State  of  residence  will  be  applicable.  The 
amendment aims at avoiding the manipulation of the applicable legislation, while respecting 
the principle of simplification and pragmatism. 

D. Amendment of Article 36 (2a) 

Article  36(2a)  of  Regulation  (EC)  No  883/2004  should  be  amended  in  order  to  bring  its 
personal  scope  of  application  into  line  with  that  of  the  rest  of  Chapter  2  of  Title  III  of 
Regulation (EC) No 883/2004 and with the third subparagraph of Article 26(2) of Regulation 
(EC)  No  987/2009  which  governs  the  parallel  issue  in  the  field  of  sickness,  maternity  and 
equivalent paternity benefit. 

E. Amendment of Article 65 (5) 

The  amendment  addresses  the  situation  where  a  self-employed  person  has  been  insured  for 
unemployment in the Member State of last activity and, once unemployed, returns to his/her 

EN 

7 

   EN 

Member  State  of  residence  which  does  not  have  any  unemployment  insurance  for  self-
employed. 

In  such  a  situation,  unlike  for  employed  persons,  the  transfer  of  the  responsibility  for  the 
payment  of  unemployment  benefits  from  the  Member  State  of  last  activity  to  the  Member 
State of residence is not possible as the legislation of the latter Member State does not provide 
for  unemployment  benefits  for  self-employed  persons.  However,  in  accordance  with  the 
purpose of Article 65 as confirmed by the case-law of the CJEU (see CJEU rulings on Article 
71 of Regulation 1408/71 which corresponds to the new Article 65 of Regulation 883/2004, 
e.g. Cases C-454/93 Van Gestel [1995] ECR I-1707, 58/87 Rebmann [1988] ECR 3467) the 
persons  subject  to  that  Article  have  a  right,  once  unemployed,  to  return  to  their  State  of 
residence  and  seek  work  there.  The  reasoning  behind  this  Article  is  that  these  persons  have 
the best prospects of reintegrating into the labour market of their Member State of residence, 
due to their close ties there. To this end, their right to social benefits shall not be restricted, 
especially  where  those  benefits  represent  the  counterpart  of  contributions  which  they  have 
paid  (Case  C-228/07  Petersen  [2008]  ECR  I-6989).  Furthermore,  the  European  Court  of 
Human  Rights  has  found  that  a  right  to  unemployment  benefits  linked  to  the  payment  of 
contributions  to  the  unemployment  insurance  fund  is  to  be  brought  –  as  a  pecuniary  right  - 
under  the  protection  of  Article  1  Protocol  No.  1  of  the  European  Convention  (Gaygusuz  v. 
Austria). 

F. Amendment of Article 71 (2) 

The  need  to  clarify  the  voting  procedure  of  the  Administrative  Commission  emerged  in 
discussions thereon. The proposed voting procedure reflects the new developments introduced 
by the Treaty of Lisbon, in particular the new Article 48 TFEU. 

Article 2 

Article 2 concerns the amendments to Regulation (EC) No 987/2009. 

A. Amendment of Article 6(1) 

The wording of this Article has been realigned more closely to what was agreed in Council. In 
point 1(b) it is now clarified that the legislation of the Member State of residence cannot be 
applied  provisionally  if  the  person  concerned  does  not  pursue  any  activities  in  the  Member 
State of residence.  

B. Amendment of Article 14(5) 

The amendment clarifies that marginal and ancillary activities, that are insignificant in terms 
of  time  and  economic  returns,  shall  not  be  taken  into  account  for  the  determination  of  the 
applicable legislation on the basis of Title II of Regulation (EC) No 883/2004. The activities 
as  such  remain  relevant  for  the  application  of  national  social  security  legislation;  if  the 
marginal  activity  generates  social  security  affiliation,  the  contributions  shall  be  paid  in  the 
competent Member State for the overall income from all activities. 

The objective of the amendment is twofold: 

1)  to  simplify  the  existing  provision  by  deleting  the  distinction  between  "simultaneous"  or 
"alternating"  activities  and  thus  enhancing  the  legal  certainty  for  persons  who  pursue  an 

EN 

8 

   EN 

effective and genuine activity in one Member State and in parallel only a marginal activity in 
another Member State, and 

2) to avoid possible misuse of the provisions on applicable legislation of Regulation (EC) No 
883/2004. 

C. Insertion of Paragraph 14(5a) 

This  amendment  ensures  that  the  meaning  of  "registered  office  or  place  of  business"  is 
applied  in  accordance  with  the  case  law  of  the  CJEU  and  other  EU  Regulations.  The 
amendment  serves  as  a  steppingstone  for  additional  elements  to  be  defined  by  the 
Administrative Commission. 

For aircrew members the "registered office or place of business" is deemed to be the "home 
base".  The  concept  of  the  "home  base"  is  recognised  and  used  in  this  sector  and  already 
defined  by  Regulation  (EEC)  No  3922/91,  which  facilitates  and  justifies  its  use  within  the 
field of coordination of social security systems. The reference to the "home base" for aircrew 
members  does  not  affect  the  principle  that  the  situation  of  each  crew  member  should  be 
examined  separately  and  on  the  basis  of  objective  information  in  order  to  determine  which 
legislation is applicable on the basis of Title II of Regulation (EC) No 883/2004.  

D. Amendment of Article 15(1) 

This amendment brings the text of this Article into line with the final agreement in the second 
reading of the European Parliament in the co-decision procedure to adopt Regulation (EC) No 
987/2009 to inform the person concerned on the applicable legislation to him/her in cases of 
posting. 

E. Amendment of Article 54(2) 

The amendment fixes an error made during the linguistic check in the Council and restores the 
original meaning of the provision. 

F. Insertion of Article 55(7) 

A  new  paragraph  is  added  in  order  to  apply  the  procedure  used  for  the  export  of  benefits 
mutatis  mutandis  to  the  situation  covered  by  the  new  provision  of  Article  65(5)(b)  of 
Regulation (EC) No 883/2004, except for the provision concerning the time restriction of the 
entitlement referred to in paragraph 1 (c) of Article 55 of Regulation (EC) No 987/2009.  

G. Amendment of Article 56(2) 

The text needs to be amended in order to address the situation where the person subject to the 
new  Article  65(5)(b)  of  Regulation  (EC)  No  883/2004  registers  him/herself,  as  a 
supplementary step, also with the employment services in the State of his/her last activity. 

In  such  a  case,  it  should  be  the  obligations  and  job-seeking  activities  in  the  State  of  last 
activity that have priority as that State provides the benefits to the person. The new wording 
gives priority to the obligations and job-seeking activities in the State providing the benefits 
and rules out negative effect of their non-fulfilment in the other Member State. 

Annex  

EN 

9 

   EN 

A. Amendment of Annex X to Regulation (EC) No 883/2004 

Annex X lists the special non-contributory cash benefits. In the Section "NETHERLANDS", 
the Disablement Assistance Act for Handicapped Young Persons of 24 April 1997 (Wajong), 
will  be  replaced  by  the  "Work  and  Employment  Support  for  Disabled  Young  Persons  Act" 
(Wet Wajong).  

Like the former Act, the income support provided by the new Act is offered to young disabled 
persons who, as a result of their disability, have a limited capacity to work and whose income 
falls  below  the  statutory  minimum  wage.  The  young  disabled  persons  who  fulfil  certain 
conditions  can  receive  income  support,  to  supplement  their  income  up  to  the  level  of  the 
statutory  minimum  wage,  if  the  income  that  they  receive  out  of  work  is  below  75%  of  the 
statutory minimum wage. The income protection can also be afforded to young handicapped 
persons  who  are  studying  and  need  financial  support  as  well  as  to  the  young  people  who 
cannot work at all, i.e. those who are completely and permanently unable to work.  

This new entry by the Netherlands was examined by the Administrative Commission and the 
income  support  was  considered  to  be  a  special  non-contributory  cash  benefit  within  the 
meaning of Article 70 of Regulation (EC) No 883/2004. 

In  the  Section  "UNITED  KINGDOM"  a  new  special  non-contributory  cash  benefit  will  be 
listed  for  UK,  namely  the  Employment  and  Support  Allowance  Income-related  (herewith 
ESA(IR)).  

The prime objective of the ESA (IR) is to guarantee a minimum subsistence income having 
regard to the economic and social situation in the UK. Income-related ESA is available where 
a  person’s  contribution  record  or  financial  situation  is  such  that  no,  or  inadequate, 
contributory Employment and Support Allowance is payable.  

ESA (IR) was considered by the Administrative Commission to be a special non-contributory 
cash benefit in the sense of Article 70 of Regulation (EC) No 883/2004 that could be listed in 
Annex X to Regulation (EC) No 883/2004.  

Also  in  the  "UNITED  KINGDOM"  section,  the  Income  Support  will  be  deleted  from  the 
Annex. The creation of the new means-tested benefits (Jobseeker's Allowance, Employment 
and Support Allowance and State Pension Credit) for specific risk categories has as effect that 
the Income support has become a limited subsistence benefit, payable to people with no, or a 
very  low,  income.  As  social  assistance  is  excluded  from  the  scope  of  Regulation  (EC)  No 
883/2004, the Income Support is to be delisted.  

B. Amendment of Annex XI to Regulation (EC) No 883/2004 

1. Amendment of Section "NETHERLANDS" 

The  entry  of  point  1(h)  extends  the  right  to  receive  benefits  in  kind  during  a  stay  in  the 
Netherlands  to  a  pensioner  and  his  or  her  family  members  who  are  insured  under  the 
legislation of another Member State and offers an additional advantage to pensioners and their 
family members in the field of sickness benefits. 

Point 1(g) can be deleted as the no-claims refund has been replaced with the introduction of a 
mandatory risk excess into the Dutch health insurance system. 

EN 

10 

   EN 

The other changes in Annex XI concern linguistic amendments to ensure consistency in the 
references to the Dutch legislation. 

EN 

11 

   EN 

2010/0380 (COD) 

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 Regulation (EC) No 987/2009 laying down the procedure for implementing 
Regulation (EC) No 883/2004  

(Text with relevance for the EEA and Switzerland) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

Having  regard  to  the  Treaty  on  the  Functioning  of  the  European  Union,  and  in  particular 
Article 48 thereof, 

Having regard to the proposal from the European Commission, 

After transmission of the draft legislative act to the national Parliaments, 

Having regard to the opinion of the European Economic and Social Committee1, 

Acting in accordance with the ordinary legislative procedure, 

Whereas: 

(1) 

(2) 

(3) 

(4) 

To  take  account  of  legal  changes  in  certain  Member  States  and  to  guarantee  legal 
certainty for stakeholders, Regulations (EC) No 883/2004 and (EC) No 987/2009 need 
to be adapted. 

Relevant proposals of the Administrative Commission for the Coordination of Social 
Security Systems concerning the coordination of social security schemes with a view 
to  improving  and  modernising  the  acquis  were  received.  The  agreed  proposals  have 
been included in this text. 

Changes  in  social  reality  can  affect  the  coordination  of  social  security  systems.  To 
respond to these changes, amendments in the field of the determination of applicable 
legislation and unemployment benefits are proposed. 

In situations where  a person  is working in two or more Member States, it should be 
clarified  that  the  condition  of  pursuing  a  "substantial  part  of  the  activity"  within  the 
meaning  of  Article  13(1)  of  Regulation  (EC)  No  883/2004  also  applies  to  persons 
pursuing activities for various undertakings or employers.  

(5) 

The  diversity  and  evolution  of  the  conditions  under  which  professional  activities  are 
pursued make it necessary to take into account the situation of highly mobile workers. 

1 

OJ C , , p. . 

EN 

12 

   EN 

                                                 
New labour supply structures have become evident amongst others in the air transport 
sector.  Linking  the  applicable  legislation  for  aircrew  members  to  the  Member  State 
where  the  registered  office  or  place  of  business  of  the  undertaking  or  employer 
employing  him/her  is  situated  only  is  effective  if  there  is  a  sufficiently  close 
connection  to  the  registered  office  or  place  of  business.  For  aircrew  members  it  is 
considered  appropriate  to  refer  to  "home  base"  as  specification  of  the  notion  of 
"registered  office  or  place  of  business"  for  the  application  of  Regulation  (EC)  No 
883/2004. 

(6) 

Article 65 (5) of Regulation (EC) No 883/2004 should be amended to ensure that self-
employed persons receive benefits in accordance with the legislation of the competent 
Member State to offer them the best prospects of re-integrating into the labour market 
in their Member State of residence when returning to that State.  

(7) 

Regulations  (EC)  No  883/2004  and  (EC)  No  987/2009  should  therefore  be  amended 
accordingly, 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 883/2004 is amended as follows: 

1. 

In Article 9(1), the first sentence is replaced by the following:  

"1. The Member States shall notify the European Commission in writing of the declarations 
made in accordance with Article 1(l), the legislation and schemes referred to in Article 3, the 
conventions entered into as referred to in Article 8(2) and the minimum benefits referred to in 
Article 58, as well as substantive amendments made subsequently." 

2. 

In Article 9, paragraph 2 is replaced by the following:  

"2. These notifications shall be submitted to the European Commission every year and shall 
be given the necessary publicity." 

3. 

In Article 12, paragraph 1 is replaced by the following: 

"1. A person who pursues an activity as an employed person in a Member State on behalf of 
an employer which normally carries out its activities there and who is posted by that employer 
to  another  Member  State  to  perform  work  on  that  employer's  behalf  shall  continue  to  be 
subject to the legislation of the first Member State, provided that the anticipated duration of 
such  work  does  not  exceed  24  months  and  that  he/she  is  not  sent  to  replace  another  posted 
person." 

4. 

In Article 13, paragraph 1 is replaced by the following: 

A  person  who  normally  pursues  an  activity  as  an  employed  person  in  two  or  more 

"1. 
Member States shall be subject to: 

(a)  the  legislation  of  the  Member  State  of  residence  if  he/she  pursues  a  substantial  part  of 
his/her activity in that Member State, or 

EN 

13 

   EN 

(b)  if  he/she  does  not  pursue  a  substantial  part  of  his/her  activity  in  the  Member  State  of 
residence: 

(i)  the  legislation  of  the  Member  State  in  which  the  registered  office  or  place  of 
business  of  the  undertaking  or  employer  is  situated  if  he/she  is  employed  by  one 
undertaking or employer, or 

(ii)  the  legislation  of  the  Member  State  in  which  the  registered  office  or  place  of 
business  of  the  undertaking  or  employer  is  situated  outside  the  Member  State  of 
residence  if  he/she  is  employed  by  two  or  more  undertakings  or  employers  and  at 
least  one  of  these  undertakings  has  its  registered  office  or  place  of  business  in  a 
single Member State outside the Member State of residence, or  

(iii) the legislation of the Member State of residence if he/she is employed by two or 
more  undertakings  or  employers,  who  have  their  registered  office  or  place  of 
business in different Member States outside the Member State of residence." 

5. 

In Article 36, paragraph 2a is replaced by the following:  

"2a.  The  competent  institution  may  not  refuse  to  grant  the  authorisation  provided  for  in 
Article 20(1) to an insured person who has sustained an accident at work or has contracted an 
occupational disease and who is entitled to benefits chargeable to that institution, where the 
treatment appropriate to his/her condition cannot be given in the Member State in which the 
person resides within a time limit which is medically justifiable, taking into account his/her 
current state of health and the probable course of his/her illness." 

In Article 65, paragraph 5 is replaced by the following: 

6. 

"5. 

(a) 

Unless otherwise provided by point (b), the unemployed person referred to in 
the  first  and  second  sentences  of  paragraph  2  shall  receive  benefits  in 
accordance with the legislation of the Member State of residence as if he/she 
had been subject to that legislation during his/her last activity as an employed 
or self-employed person. Those benefits shall be provided by the institution of 
the place of residence. 

(b)  Where  the  legislation  of  the  Member  State  of  residence  does  not  provide 
insurance  for  self-employed  persons  against  the  risk  of  unemployment,  the 
unemployed person referred to in the first and second sentences of paragraph 2, 
who was insured in the Member State of his/her last activity as a self-employed 
person  against  unemployment  shall  receive  benefits  in  accordance  with  the 
legislation of the latter Member State.  

(c) 

However,  a  worker  other  than  a  frontier  worker  who  has  received  benefits  at 
the  expense  of  the  competent  institution  of  the  Member  State  to  whose 
legislation he/she was last subject shall firstly receive, on his/her return to the 
Member State of residence, benefits in accordance with Article 64, the receipt 
of  the  benefits  in  accordance  with  (a)  being  suspended  for  the  period  during 
which  he  received  benefits  under  the  legislation  to  which  he/she  was  last 
subject." 

EN 

14 

   EN 

7. 

In Article 71, paragraph 2 is replaced by the following: 

"2.  The  rules  of  the  Administrative  Commission  shall  be  drawn  up  by  mutual  agreement 
among its members.  

In all other cases, the Administrative Commission shall act by a qualified majority as defined 
by the Treaties.  

Decisions  on  questions  of  interpretation  referred  to  in  Article 72(a)  shall  be  given  the 
necessary publicity." 

8. 

Annexes  X  and  XI  are  amended  in  accordance  with  the  Annex  to  this  Regulation.

EN 

15 

   EN 

Article 2 

Regulation (EC) No 987/2009 is amended as follows: 

1. 

Article 6(1) is amended as follows:  

(a) point (b) is replaced by the following: 

"(b)  the  legislation  of  the  Member  State  of  residence  where  the  person  concerned  pursues 
employment or self-employment in two or more Member States and performs part of his/her 
activity  or  activities  in  that  Member  State,  or  where  the  person  is  not  employed  or  self-
employed;" 

(b) point (c) is replaced by the following: 

"(c)  in  other  cases,  the  legislation  of  the  Member  State  the  application  of  which  was  first 
requested when the person pursues an activity or activities in two or more Member States." 

2. 

In Article 14, paragraph 5 is replaced by the following: 

"5. 
For the purposes of the application of  Article 13(1) of the basic Regulation a person 
who  "normally  pursues  an  activity  as  an  employed  person  in  two  or  more  Member  States" 
shall  refer  to  a  person  who  simultaneously,  or  in  alternation,  for  the  same  undertaking  or 
employer or for various undertakings or employers, exercises one or more separate activities 
in two or more Member States, with the exception of marginal activities."  

3. 

In article 14, the following paragraph 5a is added: 

“5a. For the purposes of application of Title II of the basic Regulation, "registered office or 
place  of  business"  shall  refer  to  registered  office  or  place  of  business  where  the  essential 
decisions of the undertaking are adopted and where the functions of its central administration 
are carried out.  

In  the  situation  of  aircrew  members  performing  air  passenger  or  freight  services  the 
"registered  office  or  place  of  business"  as  defined  in  Title  II  of  the  basic  Regulation  shall 
deemed  to  be  the  "home  base",  as  defined  in  Annex  III  to  Council  Regulation  (EEC)  No 
3922/912 on the harmonisation of technical requirements and administrative procedures in the 
field of civil aviation." 

4. 

Article 15 (1), the second sentence is replaced by the following: 

"That institution shall issue to the person concerned the attestation referred to in Article 19(2) 
of  the  implementing  Regulation  and  shall  without  delay  make  information  concerning  the 
legislation applicable to the person concerned, pursuant to Article 11(3)(b) or Article 12 of the 
basic  Regulation,  available  to  the  institution  designated  by  the  competent  authority  of  the 
Member State in which the activity is pursued."  

2 

OJ L373, 31.12.1991, p. 4. 

EN 

16 

   EN 

                                                 
5. 

In Article 54, paragraph 2 is replaced by the following:  

"2.  For  the  purposes  of  applying  Article  62(3)  of  the  basic  Regulation,  the  competent 
institution  of  the  Member  State  to  whose  legislation  the  person  concerned  was  subject  in 
respect of his/her last activity as an employed or self-employed person shall, without delay, at 
the  request  of  the  institution  of  the  place  of  residence,  provide  it  with  all  the  information 
necessary  to  calculate  unemployment  benefits  which  can  be  obtained  in  the  Member  State 
where it is situated, in particular the salary or professional income received." 

6. 

In Article 55, the following paragraph 7 is added: 

"7.  Paragraphs  1  to  6  shall  apply  mutatis  mutandis  to  the  persons  referred  to  in  Article 
65(5)(b) of the basic Regulation, except for paragraph 1 (c) of this Article." 

7. 

In Article 56, paragraph 2 is replaced by the following: 

"2. Where the legislation applicable in the Member States concerned requires the fulfilment of 
certain  obligations  and/or  job-seeking  activities  by  the  unemployed  person,  the  obligations 
and/or  job-seeking  activities  by  the  unemployed  person  in  the  Member  State  providing  the 
benefits shall have priority.  

The  non-fulfilment  by  the  unemployed  person  of  all  the  obligations  and/or  job-seeking 
activities in the Member State which does not provide the benefits shall not affect the benefits 
awarded in the other Member State." 

This Regulation shall enter into force on the twentieth day following that of its publication in 
the Official Journal of the European Union. 

Article 3 

This Regulation shall be binding in its entirety and directly applicable in all Member States. 

Done at […], 

For the European Parliament 
The President 

For the Council 
The President 

EN 

17 

   EN 

ANNEX 

Annex X and XI to Regulation (EC) No 883/2004 are amended as follows:  

1. 

Annex X is amended as follows: 

(a) In section "NETHERLANDS" point (a) is replaced by the following: 

"(a)  Work and Employment Support for Disabled Young Persons Act of 24 April 1997 (Wet 
Wajong)"; 

(b) In section "UNITED KINGDOM";  

(i) 

Point (c) is deleted; 

(ii)  The following point (e) is added: 

"(e)  Employment  and  Support  Allowance  Income-related  (Welfare  Reform  Act  2007  and 
Welfare Reform Act (Northern Ireland) 2007)." 

2. 

Annex XI is amended as follows: 

Section "NETHERLANDS" is amended as follows: 

(i) In point "1. Health care insurance" point (g) is deleted; 

(ii) The following point (h) is added: 

“(h)  For  the  purposes  of  Article  18(1)  of  this  Regulation,  the  persons  referred  to  in  point 
1(a)(ii) of this Annex who stay temporarily in the Netherlands shall be entitled to benefits in 
kind  in  accordance  with  the  policy  offered  to  insured  persons  in  the  Netherlands  by  the 
institution of the place of stay, taking into account Article 11(1), (2) and (3) and Article 19(1) 
of  the  Zorgverzekeringswet  (Health  Care  Insurance  Act),  as  well  as  to  benefits  in  kind 
provided  for  by  the  Algemene  Wet  Bijzondere  Ziektekosten  (General  Act  on  Exceptional 
Medical Expenses).”; 

(iii) In point 2 "(Dutch legislation on general old-age insurance)" is replaced by "General Old 
Age Pensions Act"; 

(iv) In point 2 (b) "that legislation" is replaced by "the above legislation";  

(v) In point 2 (g) "(Dutch legislation on general law for surviving dependants)" is replaced by 
"(General Surviving Relatives Act)"; 

(vi)  In  point  3  "(Dutch  general  law  on  insurance  for  surviving  dependants)"  is  replaced  by 
"(General Surviving Relatives Act)"; 

(vii) In point 3 (d) "that legislation" is replaced by "the above legislation";  

(viii) In point 4 (a) (i) first indent, "(Act on Incapacity for Work)" is replaced by "(Disability 
Insurance Act)";  

EN 

18 

   EN 

(ix) In point (4) (a) (ii) "(Self-employed Persons Act on Incapacity for Work)" is replaced by 
"(Self-employed Persons Disablement Benefits Act)". 

EN 

19 

   EN