Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union
Date: 2019-01-30
Institutions: Directorate-General for Employment, Social Affairs and Inclusion, European Commission
Subjects: United Kingdom, equal treatment, social-security benefit, social-security contribution, social-security harmonisation, withdrawal from the EU

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   EUROPEAN COMMISSION  Brussels, 30.1.2019  COM(2019) 53 final 2019/0019 (COD)  Proposal for a REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL on establishing contingency measures in the field of social security coordination following the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union  (Text with relevance to the EEA and Switzerland)  
 
 
EXPLANATORY MEMORANDUM 

1. 

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CONTEXT OF THE PROPOSAL 

Reasons for and objectives of the proposal 

The  United  Kingdom  submitted  on  29  March  2017  the  notification  of  its  intention  to 
withdraw from the Union pursuant to Article 50 of the Treaty on European Union. This means 
that, if the Withdrawal Agreement is not ratified, the Union’s primary and secondary law will 
cease  to  apply  to  the  United  Kingdom  from  30  March  2019  (‘the  withdrawal  date’).  The 
United Kingdom will then become a third country.  
A Withdrawal Agreement1 has been agreed between the Union and the United Kingdom and 
endorsed  by  the  European  Council  (Article  50)  on  25  November  2018.  However,  its 
ratification in the United Kingdom is uncertain. 

In  its  Communication  of  13  November  2018  "Preparing  for  the  withdrawal  of  the  United 
Kingdom  from  the  European  Union  on  30  March  2019:  a  Contingency  Action  Plan"2  (“the 
Communication on a Contingency Action Plan”), the European Commission underlined that 
the  Withdrawal  Agreement  was  the  best  option  for  the  orderly  withdrawal  of  the  United 
Kingdom  from  the  Union.  However,  in  the  absence  of  a  Withdrawal  Agreement,  the  Union 
will  act  to  protect  its  interests,  and  should  display  a  united  and  coordinated  approach  in  all 
areas.  In  that  same  Communication,  the  Commission  presented  the  six  general  principles 
which  contingency  measures  at  all  levels  should  comply  with.  These  include  the  principles 
that measures should not replicate the benefits of membership of the Union, nor the terms of 
any transition period, as provided for in the Withdrawal Agreement; they must be temporary 
in nature and should in principle not go beyond the end of 2019; and they must be unilateral 
actions of the European Union in pursuit of its interests, and therefore in principle the Union 
can revoke them at any time. 

As of the withdrawal date, in the event there is no Withdrawal Agreement concluded between 
the Union and the United Kingdom, Union law on social security coordination will no longer 
apply  in  the  relations  between  the  Union  and  the  United  Kingdom.  This  means  that  social 
security entitlements will not be guaranteed for Union citizens who are, or have been subject 
to  the  legislation  of  one  or  more  Member  States  and  in  situations  involving  the  United 
Kingdom (e.g. they worked or resided there while the United Kingdom was a Member State 
of the Union) and also of the United Kingdom nationals who are or have been subject to the 
legislation of one or more Member States.  

Irrespective  of  scenario,  the  Commission  has  consistently  made  clear  that  protecting  Union 
citizens in the United Kingdom, as well as United Kingdom nationals in the European Union 
is  a  priority.  This  will  require  Member  States  to  take  a  generous  approach  to  the  United 
Kingdom  nationals  who  are  already  resident  in  their  territory.  The  expectation  is  that  the 
United Kingdom acts in the same manner. With that in mind, the objective of this proposal is 

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2 

https://ec.europa.eu/commission/sites/beta-political/files/draft_withdrawal_agreement_0.pdf  
Communication from the Commission to the European Parliament, the European Council, the Council, 
the  European  Central  Bank,  the  European  Economic  and  Social  Committee,  the  Committee  of  the 
Regions and the European Investment Bank Preparing for the withdrawal of the United Kingdom from 
the European Union on 30 March 2019: a Contingency Action Plan (COM/2018/880 final). 

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to mitigate some of the negative effects of the United Kingdom's withdrawal from the Union 
in the absence of any solutions agreed with the United Kingdom. 

There is indeed a need to ensure that those persons who exercised, as citizens of the Union, 
their  right  to  free  movement  within  the  Union  before  the  withdrawal  date,  maintain  their 
social security entitlements based on facts and events that occurred and periods of insurance, 
(self)  employment  or  residence  that  were  completed  before  the  withdrawal  date,  when  the 
United Kingdom was a Member State of the Union. Certain core principles of social security 
coordination  as  enshrined  in  Regulation  (EC)  No  883/2004  on  the  coordination  of  social 
security  systems  (assimilation,  aggregation,  equality  of  treatment),  as  well  as  rules  of  this 
Regulation which give practical effect to the implementation of those principles (such as the 
pro-rata  calculation  of  an  old-age  pension),  should  continue  to  apply  in  respect  of  those 
persons, as regards facts or events that occurred and periods completed before the withdrawal 
date.  The  same  need  arises  as  regards  social  security  entitlements  of  stateless  persons  and 
refugees who are or have been subject to the legislation of one or more Member States and in 
situations  involving  the  United  Kingdom.  For  all  the  categories  above-mentioned,  family 
members and survivors are included.3 

Due  to  the  fact  that  the  United  Kingdom  will  become  a  third  country,  other  principles  and 
rules of social security coordination will not continue to apply as of the withdrawal date, such 
as the exportability of cash benefits, the continuous provision of sickness benefits in kind and 
the rules on applicable legislation. 

Under the Treaty provisions on free movement, the Union has fully exercised its competence 
with regard to the  coordination of social security systems between the United Kingdom and 
other Member States related to any exercise of the right to free movement that occurred when 
the  United  Kingdom  was  a  Member  State  of  the  Union.  It  is  therefore  not  possible  for 
Member  States  to  conclude  and  apply  bilateral  conventions  covering  the  situations  falling 
under this Regulation. 

• 

Consistency  with  existing  policy  provisions  in  the  policy  area  and  other  Union 
policies 

This proposal is part of the Union preparedness and contingency plan to mitigate the negative 
effects  of  the  withdrawal  of  the  United  Kingdom  from  the  Union  without  a  Withdrawal 
Agreement.  The  proposal  follows  the  general  principles  set  out  in  the  Communication  on  a 
Contingency  Action  Plan.  In  particular,  as  the  proposal  does  not  replicate  the  benefits  of 
membership  of  the  Union,  nor  the  terms  of  any  transition  period  as  the  Withdrawal 
Agreement would have provided for, it is unilateral and temporary.  

2. 

• 

LEGAL BASIS, SUBSIDIARITY AND PROPORTIONALITY 

Legal basis 

This proposal is based on Article 48 of the Treaty on the Functioning of the European Union 
(TFEU) as it concerns measures in the field of social security coordination. 

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The Commission will consider at a later stage to have the principles set out in this proposal extended to 
third  country  nationals  legally  resident  in  a  Member  State  who,  pursuant  to  Regulation  (EU)  No 
1231/2010 of the European Parliament and of the Council of 24 November 2010, are covered by the EU 
legislation on coordination of social security systems. 

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• 

Subsidiarity (for non-exclusive competence)  

The  subsidiarity  principle  applies  as  the  proposal  does  not  fall  under  the  exclusive 
competence of the Union. The objectives of the proposal cannot be sufficiently achieved by 
the Member States at national, regional or local level. A coordinated approach at Union level 
for the protection of social security entitlements acquired following the exercise of the right to 
freedom  of  movement  by  the  persons  concerned,  as  Union  citizens,  is  necessary.  This  will 
allow  avoiding  fragmentation  among  Member  States  in  the  application  of  Union  law  as 
regards  social  security  entitlements  that  concern  facts  or  events  that  occurred  and  periods 
completed  before  the  withdrawal  date,  and  inequality  of  treatment  as  regards  the  persons 
concerned.  

• 

Proportionality 

The proposed Regulation does not go beyond what is necessary to achieve the objectives of 
the  Commission’s  contingency  plan,  since  it  ensures  the  minimum  protection  of  social 
security  entitlements  of  persons  who  exercised  their  right  to  free  movement  prior  to  the 
withdrawal date.  

• 

Choice of the instrument 

The  proposed  instrument  is  a  regulation.  Other  means  (e.g.  a  Communication  or  other  non-
legally-binding instruments) would not achieve the required level of legal certainty.  

3. 

RESULTS 
CONSULTATIONS AND IMPACT ASSESSMENTS 

EX-POST 

EVALUATIONS, 

OF 

STAKEHOLDER 

This proposal is adopted in the context of contingency measures that need to mitigate the risks 
related  to  the  withdrawal  of  the  United  Kingdom  from  the  Union  without  a  Withdrawal 
Agreement.  

In the absence of such an agreement, the  European Commission  analysed the consequences 
thereof.  After  initially  inviting  the  Member  States  to  act,  it  eventually  concluded  that  this 
proposal is necessary in order to protect the social security entitlements of persons concerned 
as regards facts or events that occurred and periods completed before the withdrawal date. 

The  Commission  has  discussed  the  necessity  of  contingency  measures  with  the  Member 
States and the sectorial, legal and administrative preparedness steps in such a scenario. To that 
end, meetings of the Council Working Party on Article 50 took place on 27 November and 12 
December  2018,  on  16 January  2019  and  a  dedicated  technical  expert  seminar  on  social 
security coordination was organised on 20 December 2018. 

4. 

BUDGETARY IMPLICATIONS 

The  proposal  has  no  implications  for  the  Union  budget.  It  aims  at  protecting  the  social 
security  entitlements  of  persons  concerned,  including  their  income  derived  from  social 
security entitlements and the finances of the Member States.       

OTHER ELEMENTS 

Implementation plans and monitoring, evaluation and reporting arrangements 

5. 

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N/A  

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Detailed explanation of the specific provisions of the proposal 

The proposal aims at ensuring that persons who have exercised, as Union citizens, their right 
to  freedom  of  movement  before  the  withdrawal  date  maintain  their  social  security 
entitlements  related  to  facts  or  events  that  occurred  and  periods  completed  before  the 
withdrawal  date.  Other  relevant  persons  in  situations  involving  the  United  Kingdom  before 
the withdrawal date, who would otherwise be covered by Regulations (EC) Nos 883/2004 and 
987/2009,  should  also  maintain  those  entitlements:  stateless  persons,  refugees,  as  well  as 
family members and survivors of all the previous categories. 

Article 1 clarifies that the definitions applicable to this Regulation are those provided for in 
Article 1 of Regulation (EC) No 883/2004 and Article 1 of Regulation (EC) No 987/2009.  

Article 2 defines the personal scope of the proposed Regulation. It covers: persons (nationals 
of the Union or of the United Kingdom, stateless persons and refugees) who are or have been 
subject  to  Union  social  security  coordination  rules  and  in  situations  involving  the  United 
Kingdom while it was a Member State of the Union, together with their family members and 
survivors.    

Article 3 defines the material scope of the proposed Regulation, specifying that it will cover 
all branches of social security as listed in Article 3 of Regulation (EC) No 883/2004.  

Article  4  provides  for  equality  of  treatment  of  the  persons  covered  by  the  proposed 
Regulation. 

Article  5  sets  out  that  the  principles  of  assimilation  and  aggregation  provided  for  in 
Regulation (EC) No 883/2004 will continue to apply in the Union as regards any claims that 
relate to facts and events that occurred and periods completed before the withdrawal date. 

Article  6  sets  out  the  entry  into  force  and  the  entry  into  application  of  the  proposed 
Regulation.  

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2019/0019 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

on establishing contingency measures in the field of social security coordination 
following the withdrawal of the United Kingdom of Great Britain and Northern Ireland 
from the European Union 

(Text with relevance to 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, 

Acting in accordance with the ordinary legislative procedure, 

Whereas:  

(1) 

(2) 

(3) 

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On  29  March  2017,  the  United  Kingdom  of  Great  Britain  and  Northern  Ireland  (the 
‘United  Kingdom’)  submitted  the  notification  of  its  intention  to  withdraw  from  the 
Union pursuant to Article 50 of the Treaty on European Union. The Treaties will cease 
to  apply  to  the  United  Kingdom  from  the  date  of  entry  into  force  of  a  withdrawal 
agreement or failing that, two years after that notification, that is to say from 30 March 
2019,  unless  the  European  Council,  in  agreement  with  the  United  Kingdom, 
unanimously decides to extend that period. 

In  the  absence  of  a  withdrawal  agreement  or  of  an  extension  of  the  two-year  period 
after the United Kingdom’s notification, of its intention to withdraw from the Union, 
on  30  March  2019,  the  Union  rules  on  social  security  coordination  provided  in 
Regulation  (EC)  No  883/2004  on  the  coordination  of  social  security  systems4  and 
Regulation  (EC)  No  987/2009  laying  down  the  procedure  for  implementing 
Regulation (EC) No 883/20045 will also cease to apply to and in the United Kingdom.  

As  a  result,    persons  who,  in  their  capacity  of  Union  citizens,  have  legitimately 
exercised  the  right  to  freedom  of  movement  enshrined  in  Articles  45  and  49  of  the 
Treaty prior to the date of the United Kingdom’s withdrawal from the Union, can no 
longer  rely on those rules  as regards their social  security  entitlements based on facts 
and events that occurred and periods of insurance, (self) employment or residence that 

Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004  on the 
coordination of social security systems (OJ L 166, 30.4.2004, p. 1). 
Regulation  (EC)  No  987/2009  of  the  European  Parliament  and  of  the  Council  of  16  September  2009 
laying  down  the  procedure  for  implementing  Regulation  (EC)  No  883/2004  on  the  coordination  of 
social security systems (OJ L 284, 30.10.2009, p. 1). 

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were completed before the withdrawal date, and which involved the United Kingdom. 
Stateless persons and refugees who are or have been subject to the legislation of one or 
more  Member  States  and  in  situations  involving  the  United  Kingdom,  as  well  as 
members of the family and survivors of all these categories will equally be affected. 

To  achieve  the  aim  of  safeguarding  social  security  entitlements  for  the  persons 
concerned, Member States should continue applying the Union’s principles of equality 
of  treatment,  of  assimilation  and  of  aggregation  laid  down  by  Regulations  (EC)  No 
883/2004  and  987/2009  as  well  as  the  rules  of  these  Regulations  necessary  to  give 
effect to the said principles, as regards persons covered, facts or events that occurred 
and periods completed prior to the withdrawal of the United Kingdom from the Union. 

To achieve a uniform unilateral application of the social security principles of equality 
of  treatment,  of  assimilation  and  of  aggregation,  it  is  necessary  to  introduce  this 
contingency Regulation. 

This  Regulation  should  apply  as  from  the  day  following  that  on  which  the  Treaties 
cease  to  apply  to  and  in  the  United  Kingdom  unless  a  withdrawal  agreement 
concluded with the United Kingdom has entered into force by that date. 

(4) 

(5) 

(6) 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Definitions 

For  the  purposes  of  this  Regulation,  the  definitions  provided  for  in  Article  1  of  Regulation 
(EC) No 883/2004 and Article 1 of Regulation (EC) No 987/2009 shall apply. 

Article 2 

Persons covered 

This Regulation shall apply to the following persons: 

(a) nationals of a Member State, stateless persons  and refugees, who are or have been subject 
to  the  legislation  of  one  or  more  Member  States  and  who  are  or  have  been  in  a  situation 
involving the United Kingdom of Great Britain and Northern Ireland (the ‘United Kingdom’)  
before 30 March 2019, as well as their family members and survivors;  

(b) nationals of the United Kingdom who are or have been subject to the legislation of one or 
more Member States before 30 March 2019, as well as their family members and survivors. 

Article 3 

Matters covered 

This  Regulation  shall  apply  to  all  branches  of  social  security  provided  for  in  Article  3  of 
Regulation (EC) No 883/2004. 

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Article 4 

Equality of treatment  

The  principle  of  equality  of  treatment  as  laid  down  in  Article  4  of  Regulation  (EC)  No 
883/2004 shall apply to the persons referred to in Article 2 of this Regulation, as regards facts 
or events that have occurred in the United Kingdom before 30 March 2019. 

Article 5 

 Assimilation and aggregation 

1.  The  principle  of  assimilation  as  laid  down  in  Article  5  of  Regulation  (EC)  No  883/2004 
shall apply as regards benefits or income acquired and facts or events that have occurred in 
the United Kingdom before 30 March 2019. 

2.  The  principle  of  aggregation  as  laid  down  in  Article  6  of  Regulation  (EC)  No  883/2004 
shall apply as regards periods of insurance, employment, self-employment or residence in the 
United Kingdom before 30 March 2019. 

3.  Any  other  provisions  of  the  Regulation  (EC)  No  883/2004  and  Regulation  (EC)  No 
987/2009 necessary to give effect to the principles laid down under paragraphs 1 and 2 of this 
Article shall apply.  

Article 6 

Entry into force 

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

It shall apply from the day following that on which the Treaties cease to apply to and in the 
United Kingdom pursuant to Article 50(3) of the Treaty on European Union. 

However,  this  Regulation  shall  not  apply  if  a  withdrawal  agreement  concluded  with  the 
United  Kingdom  in  accordance  with  Article  50(2)  of  the  Treaty  on  European  Union  has 
entered into force by that date. 

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

Done at Brussels, 

For the European Parliament 
The President 

For the Council 
The President 

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