Voorstel voor een verordening van de Raad tot uitbreiding van de bepalingen van Verordening (EG) nr. 883/2004 en Verordening (EG) nr. […] tot de onderdanen van derde landen die enkel door hun nationaliteit nog niet onder deze bepalingen vallen = Politiek akkoord

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  1. Tekst
  2. Originele weergave
  1. Meer informatie

1.

Tekst

I. INTRODUCTION

Regulation (EC) No 883/2004 and its implementing Regulation to nationals of third

countries who are not already covered by these provisions solely on the ground of their

nationality.

  • 2. 
    The objective of the proposal is to guarantee the coordination of social security systems in the Member States for nationals of third countries who are legally resident in the EU

and who are in a cross-border situation. It aims to ensure that the same rules for

coordinating social security schemes are applied to these third country nationals as

those which will apply to European citizens once Regulation (EC) No 883/2004 and its

implementing Regulation become applicable.

  • 3. 
    The proposal is based on Article 63(4) of the Treaty.
  • 4. 
    In accordance with Articles 1 and 2 of the Protocol on the position of United Kingdom and Ireland, annexed to the Treaty on European Union and to the Treaty establishing the

European Community, and without prejudice to Article 4 of the said Protocol, the

United Kingdom is not taking part in the adoption of this Regulation and will neither be

bound by it nor subject to its application. Ireland gave notice, by letter of 24 October

2007, of its wish to take part in the adoption and application of this Regulation.

  • 5. 
    In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to the Treaty on European Union and to the Treaty establishing the European

Community, Denmark is not taking part in the adoption of this Regulation and will

neither be bound by it nor subject to its application.

  • 6. 
    The European Parliament delivered its Opinion on 9 July 2008, in the framework of the consultation procedure. The European Economic and Social Committee delivered its

opinion on 16 January 2008.

  • 7. 
    At the initiative of the Czech Presidency, the Social Questions Working Party commenced work on the proposal in January 2009.
  • 8. 
    Subject to the issues set out below, the Social Questions Working Party reached agreement at its meeting on 8 April 2009, on the text of the draft Regulation as set out

in the Annex. An explanatory note is contained in an Annex to the text of the draft

Regulation.

  • 9. 
    MT entered a parliamentary scrutiny reservation. All delegations maintained linguistic scrutiny reservations pending availability of the text in their own language versions.

II. OUTSTANDING ISSUES

  • 10. 
    ES maintained a substantive reservation on the texts of recital No 16 and of Article 1(2),

regarding the conditions to be fulfilled by third-country nationals for affiliation to social

security schemes or for entitlement to social security benefits, as it considered that these

provisions might constitute a step backwards with regard to the current Regulation

(Council Regulation (EC) No 859/2003).

  • 11. 
    LT maintained a scrutiny reservation on the text of recital No 13 concerning entitlement

to the rights deriving from the application of the provisions of Regulation (EC) No

883/2004 regarding invalidity, old age or survivors' pensions for third country nationals

when residing in a third country.

  • 12. 
    These two outstanding issues have already been examined by the Permanent

Representatives' Committee at its meeting on 6 May 2009.

  • 13. 
    ES maintained its substantive reservation as it felt that the texts suggested by the

Presidency with regard to recital No 16 and Article 1(2) might be contrary to the

application of the principle of equal treatment in relation to third-country nationals.

With the support of IT and PT, it asked the Council Legal Service to provide a written

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opinion on this issue . AT and DE stressed that they would be against any changes to the current text. The Presidency indicated that that it would hold bilateral discussions

with a view to finding a solution acceptable to all delegations.

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This Opinion has, in the meantime, been delivered (doc.9847/09).

  • 14. 
    LT maintained its scrutiny reservation on recital No 13 pending further examination at

national level. It also asked for a Council Legal Service Opinion about the interpretation

of this text as regards its impact on the obligation for Member States to grant invalidity,

old age or survivors' pensions to third-country nationals when they reside in a third

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country.

III. PRESIDENCY'S REVISED PROPOSAL

  • 15. 
    With regard to issue raised by the Spanish delegation concerning recital No 16 and

Article 1(2), in the light of the Council Legal Service Opinion and after having had

extensive consultations with the delegations concerned, the Presidency suggests

maintaining the text of Article 1(2) unchanged.

As a compromise solution if this solution is not acceptable on the basis of unanimity,

the Presidency suggests adding the terms "taking into account the principle of equal

treatment as applicable to third country nationals in compliance with Community law"

at the end of the sentence, as indicated in footnote 13.

  • 16. 
    The Lithuanian delegation has maintained its scrutiny reservation on recital No 13

at this stage.

IV. CONCLUSION

  • 17. 
    The Permanent Representatives Committee is invited to solve these last remaining

issues in order to pave the way for the Council (EPSCO) to reach a political agreement

on the text of this draft Regulation at its session on 8-9 June 2009.

_______________________

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This Opinion has, in the meantime, also been delivered (doc. 9757/09).

ANNEX

Draft

COUNCIL REGULATION

extending the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No [...] to

nationals of third countries who are not already covered by these provisions solely on the

ground of their nationality

"THE COUNCIL OF THE EUROPEAN UNION

Having regard to the Treaty establishing the European Community, and in particular

Article 63(4) thereof,

3

Having regard to the proposal from the Commission ,

4

Having regard to the Opinion of the European Parliament ,

5

Having regard to the Opinion of the European Economic and Social Committee ,

Whereas:

3

OJ C [..] of [..], p. [..]. 4

OJ C [..] of [..], p. [..]. 5

OJ C [..] of [..], p. [..].

6

(1) Since the special meeting in Tampere in 1999 the European Parliament , the Council and the 7

European Economic and Social Committee have called for the better integration of nationals of third countries who are legally resident in the territory of Member State by giving them a

set of uniform rights as close as possible to those enjoyed by citizens of the European Union.

(2) The Justice and Home Affairs Council of 1 December 2005 stressed that the European Union must ensure fair treatment of third-country nationals residing legally in the territory of the

Member States and that a more vigorous integration policy should be geared to granting them

rights and obligations comparable to those of EU citizens.

(3) Council Regulation (EC) No 859/2003 of 14 May 2003 extended the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 on the coordination of Member States'

statutory social security schemes to the nationals of third countries who were not already

8

covered by these provisions solely on the ground of their nationality .

(4) Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 9

2004 on the coordination of social security systems replaces Regulation (EEC) No 1408/71. Regulation (EC) No [...] replaces Regulation (EEC) No 574/72. Regulations (EEC) No

1408/71 and (EEC) No 574/72 should be repealed with effect from the date of application of

Regulation (EC) No 883/04 and Regulation (EC) No [...].

(5) This Regulation respects the fundamental rights and observes the principles recognised in particular by the Charter of Fundamental Rights of the European Union, in particular the spirit

10

of its Article 34(2).

6

OJ C 154, 5.6.2000, p. 63. 7

OJ C 339, 31.11.1991, p. 82. 8

OJ L 124, 20.5.2003, p.1. 9

OJ L 166, 30.4.2004, p.1.

(6) The promotion of a high level of social protection and the raising of the standard of living and quality of life in the Member States are objectives of the Community.

(7) Regulation (EC) No 883/2004 and its implementing Regulation significantly update and simplify the coordination rules for insured persons as well as social security institutions. For

the latter, the updated coordination aims to accelerate and facilitate the processing of data on

insured persons' rights to benefits and to reduce the corresponding administrative costs.

(8) In order to avoid a situation where employers and national social security bodies have to manage complex legal and administrative situations concerning only a limited group of

persons, it is important to enjoy the full benefits of modernisation and simplification in the

field of social security by making use of a single legal coordination instrument in the form of

Regulation (EC) No 883/2004 and its implementing Regulation.

(9) Hence, it is necessary to adopt a legal instrument to replace Regulation (EC) No 859/2003 with the basic aim of substituting the application of Regulation (EEC) No 883/2004 for

Regulation (EC) No 1408/71.

(10) The rights emanating from the application of Regulation (EEC) No 883/2004 and Regulation

(EC) No [...] to nationals of third countries who are not already covered by these provisions

solely on the ground of their nationality should not give them any entitlement to enter, to stay,

to reside in a Member State or to have access to its labour market. Accordingly they are

without prejudice to the right of the Member States to refuse, to withdraw or to refuse to

renew a permit to enter, to stay, to reside or to work in the Member State concerned in

accordance with Community law.

(11) The provisions of Regulation (EEC) No 883/2004 and Regulation (EC) No [...] are, by virtue

of this Regulation, applicable only in so far as the person concerned is already legally resident

in the territory of a Member State. Being legally resident is therefore a prerequisite for the

application of these provisions.

(12) The provisions of Regulation (EEC) No 883/2004 and Regulation (EC) No [...] should not

apply in a situation which is confined in all respects within a single Member State. This

concerns, inter alia, the situation of a third country national who has links only with a third

country and a single Member State.

(13) The condition of residing legally in the territory of a Member State, as laid down in Article 1

of the present Regulation, does not affect the rights deriving from the application of the

provisions of Regulation (EC) No. 883/04 concerning invalidity, old age or survivors pension,

on behalf of one or more Member States, for a third country national, who has previously

fulfilled the conditions of the present Regulation, or the survivors of such third country

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national, insofar as they derive their rights from a worker, when residing in a third country.

(14) (deleted).

(15) The continued right to unemployment benefit, as laid down in Article 64 of Regulation (EC)

No 883/04, is subject to the condition of registering as a job-seeker with the employment

services of each Member State entered. Those provisions may only therefore apply to a third-

country national provided he/she has the right, where appropriate pursuant to his/her residence

permit or long-term resident status, to register as a job-seeker with the employment services

of the Member State entered and the right to work there legally.

(16) Third-country nationals subject to this Regulation should fulfil the conditions laid down by

the legislation of the competent Member State with regard to affiliation to a social security

scheme or for the entitlement to a benefit. Community law does not limit the power of the

Member States to organize their social security schemes. In the absence of harmonization at

Community level, it is for the legislation of each Member State to lay down the conditions

under which social security benefits are granted, as well as the amount of such benefits and

the period for which they are granted. However, when exercising that power, the Member

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States should comply with Community law.

11

LT maintains a scrutiny reservation on this recital. 12

ES maintains a substantive reservation on this recital.

(17) This Regulation is without prejudice to rights and obligations arising from international

agreements with third countries to which the Community is a party and which afford

advantages in terms of social security.

(18) Since the objectives of the proposed action cannot be sufficiently achieved by the Member

States on account of cross-border situations and can therefore, by reason of the Community

scale of the proposed action, be better achieved at Community level, the Community may take

measures in accordance with the principles of subsidiarity enshrined in Article 5 of the Treaty.

In accordance with the principle of proportionality, as set out in that Article, this Regulation

does not go beyond what is necessary to achieve those objectives.

(19) In accordance with Articles 1 and 2 of the Protocol on the position of United Kingdom and

Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European

Community, Ireland gave notice, by letter of 24 October 2007, of its wish to take part in the

adoption and application of this Regulation.

(20) In accordance with Articles 1 and 2 of the Protocol on the position of United Kingdom and

Ireland, annexed to the Treaty on European Union and to the Treaty establishing the European

Community, and without prejudice to Article 4 of the said Protocol, the United Kingdom does

not take part in the adoption of this Regulation and is not bound by it nor subject to its

application.

(21) In accordance with Articles 1 and 2 of the Protocol on the position of Denmark, annexed to

the Treaty on European Union and to the Treaty establishing the European Community,

Denmark does not take part in the adoption of this Regulation and is not bound by it nor

subject to its application.

HAS ADOPTED THIS REGULATION:

Article 1

ground of their nationality, as well as to members of their families and to their survivors,

provided they are legally resident in the territory of a Member State and are in a situation

which is not confined in all respects within a single Member State.

  • 2. 
    Third-country nationals subject to this Regulation shall fulfil the conditions laid down by the legislation of the competent Member State with regard to affiliation to a social security

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scheme or for the entitlement to a benefit.

Article 2

13

As an compromise solution, the Presidency suggests that Article 1(2) would read as follows (new text in bold): "Third-country nationals subject to this Regulation shall fulfil the conditions laid down by the legislation of the competent Member State with regard to affiliation to a social security scheme or for the entitlement to a benefit taking into account the principle of equal treatment as applicable to third country nationals in compliance with Community law". 14

ES maintains a substantive reservation on this paragraph.

Article 3

This Regulation shall enter into force on the third day following that of its publication in the

Official Journal of the European Union.

It shall be applicable as of the date of entry into force of the Regulation implementing Regulation

(EC) No 883/2004.

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

accordance with the Treaty establishing the European Community.

______________

ANNEX to the ANNEX

Explanatory Note

Nationals of third countries who are legally resident on the territory of a Member State are the

persons meeting the residence conditions laid down by the legislation of the Member State in which

they are resident, and those who are authorised to reside there by virtue of a right arising from an

act of Community law or an international obligation contracted by the Member State in question or

by the European Community, in particular in the context of association agreements. Whether the

residence permit is of short or of long duration is not relevant to the definition of being legally

resident.

A third-country national enters into the scope of Regulation No 883/2004 by virtue of the present

Regulation; however, that does not mean that, according to the legislation of the competent Member

State, this person or his/her family members automatically become affiliated to certain social

security schemes or acquire rights to social security benefits. The competent Member State,

determined in accordance with the provisions of Title II of Regulation No 883/2004, will apply its

legislation. Regulation No 883/2004 does not harmonize Member States' social security schemes, so

it is for each Member State to lay down the conditions under which social security benefits are

granted, as well as the amount of such benefits, and the period for which they are granted. In doing

so, the Member State shall comply with Community law and in particular with the equal treatment

principle.

___________________

2.

Originele weergave

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3.

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