Recent developments at

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Dec 10, 2013 (3 years and 6 months ago)

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Recent

developments

at

EU
level

concerning

social
security

coordination

trESS
seminar

Sevilla

27
September

2012


Rob
Cornelissen

Monica Alfaro Murcia

Contents:

I
. Reg
(EU) 465/2012
modifying

Reg 883/2004 and
987/2009

II.
Update
EEA and
Switzerland

III. Communication on external dimension of EU social
security
coordination

IV. Work of the Administrative
Commission

V. 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


S
trengthen

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

E
3

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 robust

version for the EU

part of the

Software


Integration of

user feedback

Adaptation of

Requirements





Elaboration
of a

common set of

structured

documents and

flows


Integration of

the user

Feedback





National

preparations




Development

of 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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