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COU CIL OFBrussels, 21 ovember 2011
THE EUROPEA U IO
17043/11 ADD 1
Interinstitutional File: 2010/0380 (COD)
SOC 1007 CODEC 2067
ADDE DUM TO THE REPORT
from: Social Questions Working Party
to: Permanent Representatives Committee (Part I)
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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General Approach
Delegations will find attached the text of the draft Regulation, as it resulted from the work of the
Social Questions Working Party.
Draft
REGULATIO OF THE EUROPEA PARLIAME T A D OF THE COU CIL
amending Regulation (EC) o 883/2004 on the coordination of social security systems and
Regulation (EC) o 987/2009 laying down the procedure for implementing Regulation
(EC) o 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,
Acting in accordance with the ordinary legislative procedure,
Whereas:
(1) 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.
(2) 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.
(3) 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.
(4) 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) Annex III to Council Regulation (EEC) 3922/91 on the harmonisation of technical
requirements and administrative procedures for the field of civil aviation is defining the
concept of a home base for aircrew members under EU law. In order to facilitate the
application of Title II for this group of persons, it is justified to create a special rule by using
this notion of home base as criterion for determining the applicable legislation for aircrew
members. On the other hand, the applicable legislation for aircrew members should remain
stable and the home base principle should not result in frequent changes of applicable
legislation due to the industry's work patterns or seasonal demands.
(6) A new Article 65a should be inserted into Regulation (EC) No 883/2004 in order to ensure
that a self-employed frontier worker who becomes wholly unemployed shall receive benefits,
if he/she completed periods of insurance as a self-employed person or periods of self-
employment recognised for the purposes of granting unemployment benefits in the competent
Member State and if no unemployment benefits system covering self-employed persons exists
in the Member State of residence.
Such a new provision should be reviewed in the light of the experience after 3 years of
implementation and adjusted if necessary.
(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.(new) After Recital (18a), a new Recital (18b) is added:
"18b. Annex III to Council Regulation (EEC) 3922/91on the harmonisation of technical
requirements and administrative procedures for the field of civil aviation is defining
the concept of a home base for aircrew members as the location nominated by the
operator to the crew member from where the crew member normally starts and ends
a duty period, or a series of duty periods, and where, under normal conditions, the
operator is not responsible for the accommodation of the crew member concerned.
In order to facilitate the application of Title II for this group of persons, it is justified
to use this notion of home base as criterion for determining the applicable legislation
for aircrew members. On the other hand, the applicable legislation for aircrew
members should remain stable and the home base principle should not result in
frequent changes of applicable legislation due to the industry's work patterns or
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1.In Article 9 paragraph (1) 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 letter (l), the legislation and schemes referred to in
Article 3, the conventions entered into as referred to in Article 8(2), the minimum
benefits referred to in Article 58 and the lack of insurance system as referred to in
Article 65a(1), as well as substantive amendments made subsequently. Such
notifications shall indicate the date from which this Regulation will apply to the
schemes specified in the declarations by the Member States."
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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.(new) In Article 11, a new paragraph (5) is added:
"5. An activity as an aircrew member performing air passenger or freight services shall
be deemed as an activity pursued in the Member State where the home base as
defined in Annex III to Council Regulation (EEC) No 3922/91 is located."
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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."
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4.In Article 13, paragraph 1 is replaced by the following:
"1. A person who normally pursues an activity as an employed person in two or more
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
(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 if he/she is employed by two or more
undertakings or employers who have their registered office or place of
business in a single Member State only; 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, which have their registered office or place of business in two
Member States, one of which is 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, and at least two of them have their
registered office or place of business in different Member States other than
the Member State of residence." -
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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 a 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."
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6.Article 63 is replaced by the following:
"For the purpose of this Chapter, Article 7 shall apply only in the cases provided for by
Article 64, 65 and 65a and within the limits prescribed therein."
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7.(deleted)
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8.After Article 65, a new Article 65a is added:
"Article 65a
Special provisions for wholly unemployed self-employed frontier workers where no
unemployment benefits system covering self-employed persons exists in the Member State of
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1.By derogation from Article 65, the wholly unemployed person who as a frontier worker
most recently completed periods of insurance as a self-employed person or periods of
self-employment recognised for the purposes of granting unemployment benefits and
whose Member State of residence has submitted notification that there is no possibility
for any category of self-employed persons to be covered by the unemployment benefits
system in that Member State, shall register with and make himself / herself available to
the employment services in the Member State in which he/she pursued his/her last
activity as a self-employed person and continuously adhere to the conditions laid down
under the legislation of the latter Member State when he/she applies for benefits. The
wholly unemployed person may, as a supplementary step, make himself / herself
available to the employment services of the Member State of residence.
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2.Benefits shall be provided to the unemployed person referred to in paragraph 1 by the
Member State to whose legislation he / she was last subject in accordance with the
legislation it applies.
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3.If the person referred to in paragraph 1 does not wish to become or remain available to
the employment services of the Member State of last activity after having been
registered there, and wishes to seek work in the Member State of residence, the
provisions of Article 64 apply mutatis mutandis, except for Article 64(1)(a). The
competent institution may extend the period referred to in the first sentence of
Article 64(1)(c) up to the end of the period of entitlement to benefits."
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9.In Article 71, paragraph 2 is replaced by the following:
"2. The Administrative Commission shall act by qualified majority as defined by the
Treaties, except for its rules which shall be drawn up by mutual agreement among its
members.
Decisions on questions of interpretation referred to in Article 72(a) shall be given the
necessary publicity.
"
9a. The following Article shall be inserted:
Article 87a
Transitional provision for application of Regulation (EC) No xxx
"1. If, as a result of Regulation (EU) xxx, a person is subject to the legislation of a Member
State other than the one determined in accordance with Title II of this Regulation, as
applicable before
... [
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 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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2.No later than the third full calendar year after the entry into force of the Regulation
(EU) xxx, the Administrative Commission shall evaluate the implementation of the
provisions set up in Article 65 (a) and present a report on their application. On the basis
of this report, the European Commission may, as appropriate, submit proposals to
amend those provisions."
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10.Annexes X and XI are amended in accordance with the Annex to this Regulation.
Article 2
Regulation (EC) No 987/2009 is amended as follows:
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1.In Article 6, paragraph 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 all 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."
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2.In Article 14,
(a) (deleted)
(b) (deleted)
(c) (deleted)
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".
(d) (deleted)
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3.In Article 14, the following paragraphs 5a and 5b are 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.
For the purposes of Article 13(1) of the basic Regulation, an employed aircrew member
normally pursuing air passenger or freight services in two or more Members States shall
be subject to the legislation of the Member State where the home base as defined in
Annex III to Council Regulation (EEC) No 3922/91 is located".
5b. Marginal activities shall be disregarded for the purposes of the determination of the
applicable legislation under Article 13 of the basic Regulation. Article 16 of the
implementing Regulation applies in these cases mutatis mutandis ."
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4.In 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."
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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."
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6.In Article 55, paragraph 1, the first sentence is replaced by the following:
"In order to be covered by Article 64 or Article 65a of the basic Regulation, the unemployed
person going to another Member State shall inform the competent institution prior to his/ her
departure and request a document certifying that he/ she retains entitlement to benefits under
the conditions laid down in Article 64(1)(b) of the basic Regulation."
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7.(deleted)
7a.(new) In Article 55, the following paragraph 7 is added:
"7. Paragraphs 2 to 6 shall apply mutatis mutandis to the situation covered by
Article 65a(3) of the basic Regulation".
7b.(new) In Article 56, paragraph 1 is replaced by the following:
"Where the unemployed person decides, in accordance with Article 65(2) or 65a(1) of
the basic Regulation, to make him/herself also available to the employment services in
the Member State not providing the benefits by registering there as a person seeking
work, he/she shall inform the institution and employment services of the Member State
providing the benefits.
At the request of the employment services of the Member State not providing the
benefits, the employment services in the Member State providing the benefits shall send
the relevant information concerning the unemployed person's registration and search for
employment."
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8.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." -
Article 3
This Regulation shall enter into force on the twentieth day following that of its publication in the
Official Journal of the European Union .
This Regulation shall be binding in its entirety and directly applicable in all Member States.
Done at [...],
For the European Parliament For the Council
The President The President
AEX
Annex X and XI to Regulation (EC) No 883/2004 are amended as follows:
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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)."
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2.Annex XI is amended as follows:
(a) In section "GERMANY" point 2 is replaced by the following:
"Notwithstanding Article 5(a) of this Regulation and Article 7 of the Sozialgesetzbuch
VI (Volume VI of the Social Code), a person who is compulsorily insured in another
Member State or receives an old-age pension under the legislation of another Member
State may join the voluntary insurance scheme in Germany."
(b) In Section "FRANCE" Point 1 is deleted.
(c) 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)";
(ix) In point (4)(a)(ii) "(Self-employed Persons Act on Incapacity for Work)" is replaced by
"(Self-employed Persons Disablement Benefits Act)."
_________________
- 31 jan '06COM(2006)16 - Wijze van toepassing van Verordening (EG) nr. 883/2004 betreffende de coördinatie van de socialezekerheidsstelsels
- 21 dec '98COM(1998)779; - Coördinatie van de socialezekerheidsstelsels
- 27 sep '90COM(1990)442 - Harmonisatie van voor burgerluchtvaartuigen geldende technische voorschriften en procedures
