Recent developments at EU level concerning social security coordination

trESS seminar Sevilla27 September 2012

Rob CornelissenMonica Alfaro Murcia

Contents:

I. Reg (EU) 465/2012 modifying Reg 883/2004 and 987/2009II. Update EEA and SwitzerlandIII. Communication on external dimension of EU social security coordinationIV. Work of the Administrative CommissionV. EESSI: Where are we now? VI. Information Sources

I. Reg (EU) 465/2012 modifying Reg 883/2004 and 987/2009

• Based on 2010 Commission proposal• First importance of proposal: legal basis for

changing the rules• First time that coordination rules changed after

entry into force of Lisbon Treaty on 1 December 2009

Situation before Lisbon Treaty

Two legal bases:• Art 42 EC for employed persons and their dependents

(family members and survivors): co-decision Council and Parliament. Unanimity in Council required

• Art 308 EC for all other persons covered by Reg (self-employed, students, non-active people). Council legislator. Unanimity in Council required

Situation under Lisbon Treaty

Two relevant provisions:• Art 48 TFEU: competence for employed and self-employed

persons and their dependents. Ordinary legislative procedure: co-decision Council and Parliament and qualified majority in Council (with a brake system)

• Art 21 (3) TFEU: competence for all EU citizens not covered by Art 48 TFEU. Council is legislator. Unanimity in Council required

2010 Commission proposal based on Art 48 TFEU only

• Court: dual legal basis is excluded if one Treaty provision requires ordinary legislative procedure, whereas the other requires Council to act unanimously. In that case: determine appropriate legal basis in light of general scope of Treaty

• Commission: Art 48 TFEU is adequate and sufficient legal basis

Why is Art 48 TFEU adequate and sufficient legal basis?

• Overwhelming majority of EU citizens covered by Art 48 TFEU:• Wide meaning of "employed" and "self-employed"• Art 48 TFEU covers also retired "employed" and "self-employed"• Art 48 TFEU covers also family members and survivors of "employed"

and "self-employed"• Khalil judgment (2001): inclusion of refugees and stateless

persons ( a"very restricted category of persons") in scope of Reg based on Art 51 EC (=Art 48 TFEU) valid

Council and Parliament agree with Commission

• 2010 Commission proposal based on Art 48 TFEU adopted on 22 May 2012: Reg (EU) 465/2012

• Art 48 TFEU is adequate and sufficient legal basis for future social security coordination legislation

Changes in content in Reg 883/2004 and 987/2009

• Applicable legislation: change of rules for working in two or more MS

• Introduction of concept of "home base" for aircrew members

• Solution for formerly self-employed frontier workers who were covered in MS of last activity but whose MS of residence does not have an unemployment scheme for self-employed (Art 65a)

II. Update EEA and Switzerland

•EU/Swiss Joint Committee Decision 1/2012• O.J. L 103 of 13 April 2012• Reg 883/2004 and 987/2009 apply in relation to Switzerland since 1

April 2012•EEA Joint Committee Decision 76/2011

• Adopted on 1 July 2011 (OJ L 262 of 6 October 2011)• Last notification of lifting constitutional requirements on 31 May, which

means that Reg 883/2004 and 987/2009 apply in relation to IS, LI and NO since 1 June 2012

III. Communication on external dimension of EU social security coordination

•Context: globalised world• Social security coordination: rules aimed at

facilitating mobility• Globalised economic environment. Labour

mobility between EU and rest of world growing reality

External dimension EU social security coordination

• Social security coordination between EU and rest of world: two possible ways:• National approach: bilateral agreements• Common EU approach

Main message Communication

• Strengthen cooperation between MS to achieve more coherent approach to social security coordination with third countries• Bilateral agreements: patchy approach, content differs• When acting together: stronger bargaining position

• Proposes a new annual forum at EU level to strengthen cooperation between MS as regards third countries

Already existing impact of EU law on bilateral agreements

• Gottardo judgment (2002): MS must grant nationals of other MS same advantages as those which its own nationals enjoy under bilateral agreements concluded with third countries• explanations to third countries• requests for cooperation from third countries

Already existing impact of EU law on bilateral agreements

• Reg 1231/2010: extension scope of Reg 883/2004 to third country nationals (TCN's)

• Very existence of Reg 1231/2010 gives EU exclusive competence as regards social security coordination for TCN's in cross-border situation within EU

Relationship EU social security coordination and bilateral agreements

• In cases of conflict: EU Regulations take precedence over national rules contained in bilateral agreements with third countries• TCN is sent to a MS under terms of bilateral agreement

with third country and then moves to work in another MS: Reg 883/2004 applies

• TCN works in two MS for employer established in third country: Reg 883/2004 applies

Existing EU instruments dealing with social security rights of TCN's

• Reg 1231/2010• TCN falling under scope of Reg 883/2004 moves to third

country. Equal treatment as regards indexation MS's pension in third country

• Long-term residents Directive, Blue card and Single permit Directives, Researchers Directive: equal treatment in social security

Existing EU instruments dealing with social security rights of TCN's

•Association agreements:• October 2010:adoption of common position to be taken

in Association Councils with Algeria, Morocco, Tunesia, Israel, FYROM and Croatia

• Equal treatment• Export of full amount of pensions• Framework of cooperation and verification mechanisms

to combat fraud

Communication: develop EU approach further

• Set of proposals for Council Decisions on the EU position in Association Councils with Turkey, Albania, San Marino and Montenegro

• Explores possibility for an EU social security agreement with certain third countries

New Decisions and Recommendations• E3: extension of transitional period for EESSI (OJ C 12,

14.1.2012, p. 6)• U4: reimbursement of unemployment benefits for

former frontier workers (OJ C 57, 25.2.2012, p. 4)• Recommendation No S1: healthcare coverage for

cross-border living organ donation (pending publication)

IV. Work of the Administrative Commission

Working Parties of the AC

• Child-raising periods (14 April 2011)• - followed up by Ad-hoc Group of the AC

• Patients' mobility (4 October 2011)• - followed up by guidance from the Commission

• Recovery (17 November 2011)• - followed up by explanatory note from the Commission

• Family benefits (ex-Decisions Nos 147 and 150) (18 April 2012)

Directive 2011/24/EU - patients' rights in cross-border healthcare• How does the patients' mobility Directive

interact with the social security coordination rules in Regulations (EC) Nos 883/2004 and 987/2009?

• Guidance note of the Commission on the interpretation of the relation of the two instruments presented to Committee on cross-border healthcare in May and Administrative Commission in June 2012

Revision of coordination Regulations

Scope: • coordination of long-term care benefits (LTC)• coordination of unemployment benefits

Planning:• 2009-2011 Evaluation • 2012-2013 Impact assessment • 2014 Proposal from the Commission

Revision of coordination Regulations

Aim:• Improve social security protection of the migrant

persons• Enhance effectiveness of the coordination regime• Legal certainty for all stakeholders• Simplification

V. EESSI: Where are we now?

• Transitional period for the implementation of EESSI in Member States is 24 months

• Decision No E3 adopted in Autumn 2011: Transitional period extended with 24 months until 30 April 2014

(applicable since 1 February 2012, see OJ C 12, 14.1.2012, p. 6–7)

EESSI Project Planning

IT baseline robustversion for the EU

part of the Software

Integration ofuser feedbackAdaptation ofRequirements

Elaboration of acommon set of

structureddocuments and

flows

Integration ofthe userFeedback

Nationalpreparations

Developmentof national

IT interfaces

Training and preparation

of institutions

March 2012

March 2013

May 2014

VI. Information Sources• Commission's website

- http://ec.europa.eu/social-security-coordination- Links to legislation, official documents- Practical guide on applicable legislation- "Small Guide" on citizens' rights- Information sheets "Your rights country by country"- Explanatory notes and videos

• trESS network- http://www.tress-network.org- trESS seminars

• Communication network

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New Smartphone Application - EHIC(Android and iPhone)

Thank you very much for your attention!