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COUNCIL OFBrussels, 10 June 2011 THE EUROPEAN UNION
11077/11
Interinstitutional File: 2010/0380 (COD)
SOC 459 CODEC 970
PROGRESS REPORT
from: Presidency
to: Council (EPSCO)
No. Cion prop.: 5063/11 SOC 7 CODEC 8
Subject: 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
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-Progress Report
I. INTRODUCTION
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1.On 20 December 2010, the Commission submitted the above-mentioned proposal which
is intended to update Regulations (EC) No 883/2004 and (EC) No 987/2009 to reflect
changes in Member States' national social security legislations and to keep track with
developments in social reality that affect the coordination of social security systems. It
also includes proposals from the Administrative Commission for the Coordination of
Social Security Systems that are aimed at improving and modernising the social security
acquis in accordance with Article 72(f) of Regulation (EC) No 883/2004.
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2.The proposal is based on Article 48 TFEU (qualified majority and ordinary legislative
procedure).
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3.The European Parliament has not yet delivered its Opinion.
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4.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.
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5.At the initiative of the Hungarian Presidency, the Social Questions Working Party
undertook to start examining the proposal in January 2011. Subject to a number of
outstanding reservations, at its meeting on 6 June 2011, the Social Questions Working
Party reached a broad measure of agreement on the text of the draft Regulation.
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6.The Working Party accepted some adjustments of the Annexes reflecting the changes of
national legislations and also discussed and agreed on some necessary technical
modifications and clarifications which turned out to be necessary after the adoption of
the Regulations. Among small technicalities, the more relevant is Article 13(1) of
Regulation 883/2004/EC, which had to be modified to extend the examination of
substantial activity in the Member State of residence to those pursuing activity in two or
more Member States for various undertakings or employers. This amendment has been
agreed by the Working Party to take shape in a better understandable new structure of
this Article. Another important improvement is the agreed modified rules of
Article 14(5) and a new 14(5b) regarding marginal activity where the deletion of the
distinction between "simultaneous" or "alternating" activities and some clarification
could help to avoid possible misuse of the provisions on applicable legislation.
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7.At its meeting on 9 June, the Permanent Representatives Committee examined the
outstanding issues on the basis of the Social Questions Working Party's report
(doc. 10641/11). The outcome of these discussions is reported under Section II below.
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8.FR, DK, MT, SI and UK maintain parliamentary scrutiny reservations and DK a general
scrutiny reservation.
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9.While reserving its position at this stage, pending availability of the European
Parliament's Opinion, the Commission took a favourable stance on the text of the draft
Regulation as proposed by the Presidency, as a whole.
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10.All delegations also maintain linguistic scrutiny reservations pending availability of the
text in their own language versions.
II. OUTSTANDING ISSUES
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11.Special provisions for wholly unemployed self-employed persons (Article 1(8) of
the proposal to amend Article 65(5) of Regulation 883/2004):
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a)Objective of the Commission proposal:
Under Article 65 of Regulation (EC) no 883/2004, wholly unemployed workers
shall receive unemployment benefits from the Member State of residence subject
to the legislation of that Member State if they resided and continue to reside or
return to the Member State of residence.
According to these provisions, self-employed persons who have been insured
against unemployment in a Member State which has unemployment insurance for
self-employed persons, whilst residing in a Member State which does not have
unemployment insurance for self-employed persons, do not receive
unemployment benefits in the event of becoming wholly unemployed. Not
providing for access to benefits would mean a restriction to the right of free
movement contrary to the basic principles of social security law and would not
correspond to the case law of the European Court of Human Rights.
In this framework, the proposed amendment to Article 65 of Regulation 883/2004
provides that in cases where the Member State of residence does not have
unemployment insurance for self-employed persons, the Member State of last
activity should pay unemployment benefits to unemployed persons, while they
should primarily be registered and available in the Member State of residence.
The reasoning behind the proposed amendment is that since unemployed self-
employed persons have the best prospects of reintegrating the labour market of
their Member State of residence, due to their close ties there, their right to social
benefits should not be restricted, especially where those benefits represent the
counterpart of contributions which they have paid.
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b)Presidency proposal
In the light of the outcome of the discussions, the Presidency has presented an
overall compromise proposal stipulating that a new Article 65a and an
accompanying recital No 6 should be inserted into Regulation 883/2004, together
with some necessary technical changes in related articles, to provide that self-
employed persons who resided in a Member State other than the competent State
and who continue to reside in that Member State, or return to that Member State,
shall receive benefits if they have been insured against the risk of unemployment
in the competent State and if no insurance against this risk exists for self-
employed persons in the Member State of residence.
According to the proposal, unemployment benefits would be granted to this group
of people by the legislation of the Member State to whose legislation the
respective person was last subject. These persons have to register and make
themselves available to the employment services of that Member State, and
adhere to the conditions laid down under its legislation with a possibility of
supplementary registration in the Member State of residence. If the person does
not wish to become, or remain, available to the employment services of that
Member State and wishes to seek work in the Member State of residence, he/she
can get the benefit for a period of 3 months with a possible extension to the whole
period of eligibility by the competent authority.
The majority of delegations could support the Presidency's compromise proposal
in order to find a solution regarding the situation of a small group of people
paying contributions but receiving no benefits.
The majority of those Member States who have no such sytem of insurance and
methods of calculation strongly oppose any solution which would require them
providing and calculating the benefits, considering that such a solution would go
beyond coordination.
DE, DK, FI, LU, SE and SK maintain reservations of substance on the
Presidency's overall compromise proposal. These delegations stress that the
coordination rules of the Regulation would be used to compensate the lack of
national legislation regarding unemployment insurance schemes for the self-
employed, which is not the purpose of the Regulation. They also consider that the
proposal puts more burden on Member States who have insurance for the self-
employed.
These delegations, together with NL, SI and UK, are of the view that the proposed
amendment constitutes a rather substantive change, thus requiring a careful
In the course of the meeting of the Permanent Representatives Committee, on 9
June, BE, FR, MT and SI have expressed sympathy for the Danish delegation's
position.
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12.Use of the "home base" criterion for the determination of the legislation applicable
to aircrew members (Article 2(3) of the proposal to add a new paragraph 5a in
Article 14 of Regulation No 987/2009)
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a)Objective of the Commission proposal:
The aim of the proposed amendment is to clarify the notion of "registered office
or place of business" as "home base" for flying personnel, the notion of a "home
base" being defined in Regulation (EEC) No 3922/91 on the harmonisation of
technical requirements and administrative procedures in the field of civil aviation.
The home base is a place from which the air crew member habitually carries out
his or her work in performance of his or her contract. In the Commission's views,
it is more closely linked to the actual place of work of the person concerned and
constitutes a more suitable element for the determination of the applicable
legislation than the registered office or place of business of the employer or
undertaking.
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b)Presidency's proposal on the "home base"
In the light of the outcome of the discussions, delegations saw the need to go
beyond the proposal of the Commission and use the home base concept as the
basic rule for determining applicable legislation for aircrew members performing
air passenger and freight services.
The Presidency, taking into account Member States request, presented a proposal
on the basis of a proposal by the French delegation, the approach of which was
supported by delegations.
The Presidency proposal would add a new Article 11(5) providing as a main rule
that an activity as an aircrew member shall be deemed as an activity in the
Member State where the home base as defined in Annex III of Regulation (EEC)
No 3922/91 is located. In the exceptional cases of having two or more home
bases, the rules of Article 13 could apply mutatis mutandis together with a
clarification through a new Article 14(5a) in Regulation 987/2009, providing that
for the application of Article 13(1) in case of aircrew members, "registered office
or place of business"should deemed to be the home base. A new recital would also
be introduced as recital 18b in Regulation 883/2004, to justify the need for this
amendment.
Two delegations (DK and IE) maintain reservations of substance on the
Presidency text proposal and consider that the proposed amendments would
require an impact assesssment. DK is of the view that these are substantial
amendments which would have an impact on a large number of persons thus
involving major costs. IE also considers them a substantial change as, in its views,
using the "home base" criterion to determine the applicable legislation would lead
to frequent changes of applicable legislation as airline workers are very mobile,
which would result in very fragmented social insurance records thus complicating
matters when a person is claiming benefits.
FR and UK maintain scrutiny reservations. FR also maintains a scrutiny
reservation on recital No 18b.
FR submitted a proposal with regard to the second indent of Article 14(5a) of
Regulation No 987/2009 at the meeting of the Permanent Representatives'
Committee. BE, CY, DE, EL, IT, LV, MT, NL, PT, SE, SK and UK could agree
with that proposal. AT, CZ and LT entered scrutiny reservations.
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13.Transitional provisions (Article 1(9a) of the proposal, new Article 87a to be
inserted in Regulation 883/2004.
Upon request by a number of delegations, in order to secure acquired rights of citizens
transitional provisions have been added regarding changes in the legislation applicable
under the draft Regulation. According to these provisions, who would be under different
legislation according to the new rules, shall stay under the current rules if the relevant
situation remains unchanged and in cany case for no longer than 10 years unless they
request otherwise.
The vast majority of delegations can accept the Austrian delegation's amendments to the
text for the new Article 87a of Regulation 883/2004, as presented at the meeting of the
Permanent Representatives Committee on 9 June.
... [ insert the date of entry into force of Regulation (EU) xxx] , that legislation shall continue to apply as long as the relevant situation remains unchanged and, in any case, for no longer than 10 years from [insert the date of entry into force of Regulation (EU) xxx], unless the person concerned requests that he/she be subject to the legislation applicable under this Regulation as amended by Regulation (EU) xxx. The request shall be submitted within three months after [insert the date of entry into force of Regulation (EU) xxx] to the designated institution of the Member State of residence if the person concerned is to be subject to the legislation determined under this Regulation as amended by Regulation (EU) xxx as of [insert the date of entry into force of Regulation (EU) xxx]. If the request is made after the time limit indicated, the change of applicable legislation shall take place on the first day of the following month."
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14.Legal basis
The proposed legal basis is Article 48 TFEU which enables the Council to take
measures in the field of social security that are necessary in order to provide freedom of
movement for workers, both employed and self-employed.
Following the Opinion of the Council Legal Service (doc. 6143/11), the vast majority of
delegations can accept this proposed legal basis. However, NL still maintains a
reservation of substance as it considers that there is a remaining category of persons
falling under the personal scope of Regulation 883/2004 which is not covered by
Article 48 TFEU and that it could be argued that recourse to Article 21(3) TFEU would
be necessary. IE, MT and UK maintain scrutiny reservations.
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15.Voting procedure of the Administrative Commission on the Coordination of Social
Security Systems (proposed amendment to Article 71(2) of Regulation 883/2004):
The proposal aims to amend Article 71(2) of Regulation 883/2004 to clarify the voting
procedure of the Administrative Commission in the light of the new developments
introduced by the Lisbon Treaty, in particular Article 48 TFEU.
Following the Opinion of the Council Legal Service (doc. 6143/11), most delegations
can accept the proposed amendment. However, BG and MT maintain a reservation of
substance. IE, NL, and UK maintain scrutiny reservations.
The vast majority of delegations can agree with the following draft Statement for the
Council Minutes, as suggested by the Italian delegation and amended by the UK
delegation in the course of the meeting of the Permanent Representatives Committee on
"The Council considers that a consensus should be sought within the Administrative
Commission for the Coordination of Social Security Systems, especially for measures
aimed at facilitating the uniform application of European Union law."
DK, IE and PT have entered scrutiny reservations on the draft declaration.
III. CONCLUSION
While very significant progress has been made under the Hungarian Presidency on the text of
the draft Regulation, and in spite of the high level of support for the overall compromise
proposal submitted by the Presidency, the Presidency nevertheless considers, in the light of
the outcome of the discussions in the Permanent Representatives Committee, that it would be
appropriate to allow for further work on the outstanding issues in view of their importance for
a number of delegations which cannot agree with the Presidency's overall compromise
proposal. By submitting this Progress Report the Presidency wishes to accentuate its
dedication towards consensus that has always characterised the field of social security
coordination.
Delegations find attached in the Addendum to this Report (doc. 11077/11 ADD 1) the overall
compromise proposal of the Hungarian Presidency, where to all outstanding issues a
justifiable solution is presented in accordance with the rules and principles of social security
coordination as a basis for future work of upcoming Presidencies.
_____________________
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