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COU CIL OFBrussels, 25 ovember 2011
THE EUROPEA U IO
17421/1/11 REV 1
Interinstitutional File: 2010/0380 (COD)
SOC 1030 CODEC 2166
REPORT
from: Permanent Representatives' Committee (Part I)
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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General Approach
I. I TRODUCTIO
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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 (the "basic Regulation") and (EC)
No 987/2009 (the "implementing Regulation") 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 position at first reading.
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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
(SQWP) undertook to start examining the proposal in January 2011. The Working Party
reached a broad measure of agreement on the text of the draft Regulation (as set out in
doc. 10641/11 ADD 1) subject to a number of outstanding reservations (as outlined in
doc. 10641/11). On the basis of the SQWP's report, the Permanent Representatives'
Committee decided to submit a progress report (doc. 11077/11) accompanied with the
Hungarian Presidency's overall compromise proposal to the Council (EPSCO) 17 June
session.
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6.In view of the need for a swift adoption of the Regulation, the Polish Presidency
continued the work in the SQWP, taking as the starting point the results achieved during
the Hungarian Presidency, with the objective of paving the way for the Council
(EPSCO) to reach a general approach at its session on 1 December 2011. Special
attention was drawn to the main outstanding issues, i.e. special provisions for wholly
unemployed self-employed persons and the use of the "home base" criterion for the
determination of the legislation applicable to aircrew members.
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7.In order to undertake an in-depth analysis of the personal scope of the proposed
provisions on unemployment benefits, the Polish Presidency submitted a questionnaire
on this issue (doc. 13343/11). The replies received from delegations (doc. 13685/11)
were the basis for the first Presidency proposal (doc. 13690/11). Subsequent
compromise proposals and explanatory notes were submitted in order to accommodate
the concerns raised by delegations in the course of negotiations in five meetings of the
Social Question Working Party (docs. 14394/11, 15809/11, 16008/11, 17013/1/11
REV 1, 14377/11, 16140/11, 16611/11).
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8.The Polish Presidency also held intensive bilateral consultations with a number of
delegations in order to explore the ways for reaching an agreement acceptable to the
widest possible majority of delegations.
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9.At its meeting on 18 November 2011, subject to a number of remaining reservations as
outlined below, the SQWP reached a broad measure of agreement on the text of the
draft Regulation as set out on the basis of the Presidency's overall compromise proposal
(doc. 17043/11 ADD 1).
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10.On 23 November 2011 the Permanent Representatives' Committee examined the
outstanding issues as outlined in doc. 17043/11 and 17043/11 COR1 in order to pave
the way for the Council (EPSCO) to reach a general approach on the text of the draft
Regulation at its session on 1 December 2011.
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11.DK and SI maintained parliamentary reservations.
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12.While reserving its position at this stage, pending availability of the European
Parliament's position at first reading, 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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13.All delegations maintain linguistic scrutiny reservations pending availability of the text
in their own language versions.
II. OUTSTA DI G ISSUES
A. Special provisions for wholly unemployed self-employed persons (Article 1(8) of
the proposal to add a new Article 65a into 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)Polish Presidency proposal
In the light of the replies to its questionnaire and of the outcome of the
discussions, the Presidency presented an overall compromise proposal stipulating
that Article 65a would only apply where the unemployed person resides in a
Member State whose legislation does not provide for any compulsory or voluntary
payment of unemployment insurance contributions by any category of self-
employed persons.
In this respect, the Presidency suggested amending the wording of Article 65a (as
proposed by the Hungarian Presidency in doc. 11077/11 ADD 1) in relation to the
scope of application of that provision in order to stress its very exceptional nature.
According to the Presidency's proposal, Article 65a should only be applied where
there is absolutely no possibility of unemployment insurance for self-employed
persons in the Member State of residence and, consequently, the institutions in
that Member State are not able to grant unemployment benefits to any
unemployed formerly self-employed frontier worker.
The Presidency explained that the objective of its proposal would be to provide
for rules based on the principle of the state of residence in accordance with the
basic Regulation. These provisions should allow for a uniform interpretation and
should be easy to apply for institutions as well as transparent for citizens.
The Presidency stressed that its compromise proposal provided for legal certainty
as, in a given situation, only one rule (either the Member State of last activity or
the Member State of residence being competent to pay for the unemployment
benefits) would be applied in a particular Member State.
In addition, the Presidency proposed adding a review clause in Article 87a(2).
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c)Delegations' positions
AT, BG, CY, CZ, DE, DK, ES, LU, LV, RO, SE, SK and UK support the
Presidency's compromise proposal in view of the need to find a solution to
address the situation of a small group of self-employed persons paying
unemployment insurance contributions but not receiving unemployment benefits
in return in the event of becoming wholly unemployed. They consider that those
persons should not be without any social protection when they exercise their right
to free movement.
While still maintaining doubts about certain aspects of the Presidency's proposal,
in particular as regards the limitation of the scope of Article 65a to frontier
workers, another group of delegations (BE, EL, EE, HU, LT and SI) can accept
the Presidency's proposal in a spirit of compromise. LT would have a preference
for other alternative proposals (such as the Hungarian Presidency's compromise
proposal, or proposals submitted by FR, IE, UK and MT in the course of the
discussions) but can nevertheless also accept the Presidency's text in view of the
lack of sufficient support for those proposals.
While acknowledging the need to find a solution for this category of self-
employed persons, FR, IE, IT, MT, NL and PT cannot accept the Presidency's
proposal, as they consider, in particular, that this proposal goes beyond the
principles of coordination and is not in keeping with the general rules as set out in
Regulation 883/2004. They therefore consider that another approach should be
taken.
FI cannot accept the Presidency's compromise proposal for other reasons of
principle and maintains a reservation of substance.
In the course of negotiations proposals by IE, UK, FR and MT were presented.
They were based on so-called sectoral approach, i.e. that the Member State of
residence would be obliged to pay unemployment benefits only to the categories
of self-employed cross-border workers who would have been covered by its
unemployment benefits scheme.
FR reintroduced its proposal during the Permanent Representatives' Committee
meeting on 23 November 2011, gaining support from IE, IT, MT, NL and PT.
BE, EL and LT declared their openness to also support FR's proposal if it could
lead to an overall compromise agreement.
AT, CZ, DE, DK, EE, ES, FI, HU, LU, RO, SE, SK and SI cannot accept this
sectoral approach, as it leads to the situation where two rules (the competence of
the Member State of last activity or of the Member State of residence) would
apply in one Member State depending on the category of self-employment in
another Member State. Such a solution could result in a certain degree of legal
uncertainty, especially as regards the possible problems for the citizens while
assessing whether or not their self-employment would be covered by one of the
categories eligible for unemployment coverage in their Member State of residence
as there are no common categories of professions that apply to all Member States.
Moreover, in certain Member States there are very limited unemployment benefits
schemes covering the self-employed which are not based on the profession of the
person concerned but on other factors.
CION stresses that the aim of Article 65a is to prevent a situation where a self-
employed person, who was covered against the risk of unemployment in the
Member State of last activity, has no right to unemployment benefits whatsoever
in the Member State of residence, and to find a solution in line with
Article 48 TFEU and the case law of the European Court of Human Rights.
It underlines that any solution should serve the objective of the Unemployment
Benefits Chapter to reintegrate unemployed persons into the labour market and
to ensure that the unemployed self-employed persons can receive their benefits for
the entire period. CION reaffirmed in Statement the need to fill the gap in social
security protection for this group of persons (doc. 15898/11) and declared its
readiness to open a broader discussion on the current provisions in the
unemployment field on the occasion of the review of Article 65a, as foreseen
B. 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 o 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"
The Hungarian Presidency's compromise proposal aimed at adding a new
Article 11(5) to Regulation No 987/2009 providing as a main rule that 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 was also be
introduced as recital 18b in Regulation 883/2004, to justify the need for this
On the basis of a proposal by the French delegation, the Polish Presidency
suggested replacing the second paragraph in Article 14(5a) as set out in
doc. 11077/11 ADD 1 to ensure the overall coherence of the provisions regarding
aircrew members in Article 11(5) of the basic Regulation and Article 14(5a) of the
implementing Regulation. The objective is to cover all air navigation personnel in
an appropriate way. Moreover, as the result of discussions, the definition of
"home base" was inserted into recital 18 b.
The very vast majority of delegations can accept the Presidency's proposal.
IE maintains a reservation of substance on the Presidency's proposal and FR a
scrutiny reservation on accompanying recital 18b.
IE is against the use of the "home base" as a criterion for the determination of the
legislation applicable to aircrew members. IE considers that it is not in the interest
of airline personnel as it will lead to frequent changes in applicable legislation
which will result in very fragmented social insurance records thus complicating
matters when a person is claiming benefits. In its view, the introduction of the
"home base" would add to the administrative burden and costs for employers.
FR maintains a scrutiny reservation on accompanying recital 18b as it stresses that
if the definition of a home base should change, it would remain unchanged in
Regulation No 883/2004 and an amending regulation would be required to make
any amendments to it. This would be damaging, particularly for aircrew and the
relevant institutions, and a source of complexity.
C. 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.
NL 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. During the Permanent Representatives`
Committee meeting on 23 November 2011 NL declared ready to withdraw this
reservation if the general approach could be reached at the Council. MT maintains a
scrutiny reservation on the legal basis.
D. 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 reservations of
substance. NL maintains a scrutiny reservation.
All 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 9 June 2011:
"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."
III. CO CLUSIO
As it results from the discussion in the Permanent Representatives' Committee, two different
positions with regard to Article 65a remain.
The Council (EPSCO) is invited to reach a general approach on the text of the draft
Regulation at its session on 1 December 2011 on the basis of the Presidency's proposal
(doc. 17421/11 ADD 1).
_____________________
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- 27 sep '90COM(1990)442 - Harmonisatie van voor burgerluchtvaartuigen geldende technische voorschriften en procedures
