Gemeenschappelijk standpunt, door de Raad vastgesteld op xx december 2008, met het oog op de aanneming van een verordening van het Europees Parlement en de Raad tot wijziging van Verordening (EG) nr. 883/2004 betreffende de coördinatie van de socialezekerheidsstelsels en tot vaststelling van de inhoud van de bijbehorende bijlagen

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  1. Tekst
  2. Originele weergave
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1.

Tekst

DRAFT STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 29 April 2004, the European Parliament and the Council adopted Regulation

1

(EC) No 883/2004 on the coordination of social security systems (hereinafter referred to as 2

the "basic Regulation") which is intended to replace Regulation (EEC) No 1408/71 .

The basic Regulation 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. The basic Regulation 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), which were left empty, should be determined before the date of application of the

Regulation.

Some of the Annexes had also 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.

This is the purpose of the two proposals for Regulations which the Commission presented 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;

1

OJ L166, 30.4.2004, corrected version in OJ L 200, 7.6.2004, p.1. 2

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).

· 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.

The two proposals are based on Articles 42 and 308 of the Treaty.

Acting in accordance with Article 251 of the Treaty, the European Parliament adopted, on 9

July 2008, a single Opinion in first reading consisting in 77 amendments to the proposal for a

Regulation amending Regulation (EC) No 883/2004 on the coordination of social security

3

systems, and determining the content of Annex XI. It considered that the procedure relating to the second proposal had lapsed as a result of the incorporation of its contents into the

procedure relating to the first proposal.

4

The Economic and Social Committee delivered its opinions on 26 October 2006 .

The Commission presented its amended proposals on 15 October 2008. Taking into

consideration amendment 1 of the European Parliament, the amended proposals

acknowledge the merging of the two original proposals into a single text. The Commission

accepted all the amendments adopted by the European Parliament.

In accordance with Article 251(2) of the EC Treaty, the Council adopted its Common Position

by unanimity on xx December 2008. The Common Position also relates to both the original

proposals which have been merged into a single text.

3 Not yet published in the Official Journal.. 4

OJ C 161, 13.07.2007, p. 61.

II. OBJECTIVE

While the proposal for an implementing Regulation provides for horizontal rules, the proposal

for a Regulation determining the content of Annex XI, for its part, provides for supplementary

provisions regarding specific aspects of individual Member States' legislation in order to

ensure that the basic Regulation is smoothly applied 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 had been left empty, have equivalent

provisions in Annexes III and IIa of Regulation 1408/71. The remainder of the Annexes being

amended by this proposal already contain provisions in respect of several Member States, but

need to be completed to take account of the Member States which acceded to the EU after 29

April 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) only apply to Regulation 883/2004.

III. ANALYSIS OF THE COMMON POSITION

  • 1. 

    General observations:

  • a) 

    Commission's amended proposal

The European Parliament adopted 77 amendments to the Commission's proposal.

All of these amendments were incorporated into the amended Commission

proposals in whole, in part or after being reworded (amendments Nos 1-5, 7-11,

13-24 and 26-78 rev).

  • b) 

    Council's Common Position:

The Council could accept 70 of the 77 amendments, as wholly or partially

incorporated into the Commission's amended proposal, namely amendments

Nos 1-5, 7, 8, 10, 13-19, 21, 22 and 25-77.

However, the Council did not deem it advisable to take up amendments Nos 6, 11,

12, 20, 23, 24 and 78 rev. Moreover, while agreeing on the substance of

amendment 9 concerning the definition of "benefits in kind", the Council

considered that this definition should be clarified further (Article 1(3)(va) of the

Common Position).

  • 2. 

    Council's position on amendment 20 and the other related amendments:

This issue concerns the right of the members of the family of a frontier worker to

receive health care in the Member State where the worker is employed on the same

conditions as those which are applicable to him/her.

Article 18(2) of the basic Regulation provides 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, unless this Member State is listed in Annex III". Annex III of the basic

Regulation lists the seven Member States which apply restrictions of the rights to

benefits in kind for members of the family of a frontier worker.

Amendment 20 of the European Parliament (to which amendments Nos 6, 11 and 12

closely relate) states that a new paragraph 10a should be inserted into Article 87 of the

basic Regulation which would provide that "Annex III shall be repealed 5 years after the

date of application of the Regulation."

The Council could not reach agreement by unanimity on this amendment in view of the

opposition of five delegations. These delegations consider, as a matter of principle, that

the provision set out in Article 18(2) of the basic Regulation should not be put into

jeopardy in view, in particular, of the lack of experience with the application of the new

Regulation. They stress that the delicate compromise adopted in Regulation No

883/2004, in which Parliament played an important role, should not be changed. Before

taking any further step, they would prefer not to extend the rights of the family members

of cross-border workers as regards health care beyond that which is provided for in

Regulation (EEC) 1408/71 as, in their view, a decision, at this stage, to repeal Annex III

after a period of 5 years, would be premature.

On the other hand, all the other delegations could accept this amendment in a spirit of

compromise. Moreover, the delegations of six of the Member States listed in Annex III

to the Common Position took an even more flexible stance, as they could accept to

repeal Annex III after a period of four years. In this context, the Italian delegation,

which could not accept amendment 24 as it considered it necessary to have an entry in

Annex III, took a compromise stance on amendment 20 as it accepted that the period of

validity of its entry be limited to four years.

In view of this situation, and bearing in mind the importance of this issue for the

European Parliament, a compromise solution was eventually reached by unanimity

according to which:

· Articles 18(2) and 28(1) of the basic Regulation would be amended to provide that Annex III would be reviewed 5 years after its application, and

· A new paragraph (10a) would be added to Article 87 of the basic Regulation to provide that the period of validity of some Member States' entries in Annex III

would be limited to 4 years.

The Council considers that this represents a both realistic and balanced solution which

clearly goes in the direction of the European Parliament's position. It hopes that

Parliament will be able to accept it.

  • 3. 

    Council's position on amendment 23

Amendment 23 relates to Annex II to the basic Regulation (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,

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.

  • 4. 

    Council's position on amendment 78 rev

Amendment 78 rev aims, among others, to maintain the entry "Italy" in Annex IV of the

basic Regulation, which provides that the Member States listed in this Annex will

provide more rights for pensioners returning to the competent Member State

(Article 27(2) of the basic Regulation). As far as this entry is concerned, this

amendment was not acceptable to the Council acting on the basis of unanimity.

After the adoption of the basic Regulation, the Italian competent authorities reassessed

their position, preferring not to grant, for the time being, additional rights for

pensioners. In the light of these new developments, the Commission proposed, in its

original proposal amending the annexes to Regulation (EEC) No 883/2004, that the

entry "Italy" should be deleted from Annex IV. The Italian delegation could go along

with the Commission's proposal.

The Commission has accepted the Common Position agreed by the Council.

  • 5. 

    Specific comments

The Council considered it necessary to make the following changes to the Commission

proposal :

· Article 15 of the basic Regulation: the terms "auxiliary staff" have been replaced by the terms "contract staff" in the Common Position in accordance with the Staff

Regulations;

· Article 36(1) of the basic Regulation : the Council considered it necessary to provide that Articles 17, 18(1), 19(1) and 20(1) will also apply to benefits relating

to accidents at work or occupational diseases;

· Furthermore, the Council was of the view that a new paragraph 2a should be added to Article 36 of the basic Regulation in order to include the principle set out

in Article 33 of the Commission proposal for a Regulation laying down the

procedure for implementing Regulation (EC) No 883/2004;

· Article 87(8) of the basic Regulation: the Council considered it necessary to replace the current paragraph 8 with a new paragraph to specify the maximum

time period during which a person will be 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.

IV. CONCLUSION

The Council welcomes the spirit of cooperation which prevailed with the European

Parliament during the first reading of this significant element of ancillary legislation and

which allowed the two institutions already to reduce to a very large extent the scope of

potential disagreement.

In particular, the Council appreciates the European Parliament's initiative with regard to the

merging of the proposal amending Regulation (EC) No 883/2004 on the coordination of social

security systems, and determining the content of Annex XI, with the proposal amending the

annexes to that Regulation.

It considers that its Common Position goes largely in the direction of the concerns voiced by

Parliament.

It looks forward to pursuing this constructive discussion with the European Parliament, with a

view to reaching final agreement on this complementary legislation as soon as possible, in

view of the overriding interest of the early entry into application of the complete package of

new rules regarding the modernisation and simplification of the coordination of social

security systems.

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2.

Originele weergave

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