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

Recent developments at
EU level concerning
social security
trESS seminar Sevilla
27 September 2012
Rob Cornelissen
Monica Alfaro Murcia
I. Reg (EU) 465/2012 modifying Reg 883/2004 and
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
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 (selfemployed, 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
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
Why is Art 48 TFEU adequate and
sufficient legal basis?
• Overwhelming majority of EU citizens covered by Art 48
• 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
• 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
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
• Context: globalised world
• Social security coordination: rules aimed at
facilitating mobility
Globalised economic environment. Labour
mobility between EU and rest of world growing
External dimension EU social security
• 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
IV. Work of the Administrative
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
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
• Guidance note of the Commission on the
interpretation of the relation of the two
instruments presented to Committee on crossborder healthcare in May and Administrative
Commission in June 2012
Revision of coordination Regulations
• coordination of long-term care benefits (LTC)
• coordination of unemployment benefits
• 2009-2011 Evaluation
• 2012-2013 Impact assessment
• 2014 Proposal from the Commission
Revision of coordination Regulations
• Improve social security protection of the migrant
• 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.
EESSI Project Planning
March 2012
IT baseline robust
version for the EU
part of the
Integration of
user feedback
Adaptation of
Elaboration of a
common set of
documents and
Integration of
the user
March 2013
of national
IT interfaces
Training and
of institutions
May 2014
VI. Information Sources
• Commission's website
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
New Smartphone Application - EHIC (Windows
New Smartphone Application - EHIC
(Android and iPhone)
Thank you very much
for your attention!

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