2010 - Reg 883/2004 and 987/2009: modernised social security coordination

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Reg 883/2004 and 987/2009: modernised social security

coordinationLondon, 2 July 2010

Rob Cornelissen

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1 May 2010

• Reg 883/2004 and 987/2009 replaced Reg 1408/71 and 574/72

• Simplification to some degree

• Improvement of citizen’s rights on a number of points

• Cooperation between institutions strengthened

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Building on long evolution

• More than 50 years of social security coordination

• Unique character of European coordination: role of Court of Justice

• Illustration:– Provisions declared invalid (Habelt, Pinna)– Interpretation contra legem (Bosmann)– Coordination provisions complemented by direct

application of Treaty provisions (cross-border health care)

– Coordination provisions do not always have the last word (De Cuyper, Petersen)

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Major changes of new system

• Simplification to some extent, in particular in Titles I and II:– General aggregation provision– Better wording and structure of provisions– Lesser exceptions to general rules– Extension of personal scope also contributed

to simplification

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Simplification

• Importance of simplification not to be overestimated:– Reg 883 is not simple– Number of annexes has increased– Anex III: « Restriction of rights to benefits in

kind for members of the family of a frontier worker » Role of EP on this annex

– Annexes IV and V: « More rights for…. »

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Title I: General provisions

• Personal scope: all EU nationals insured under national law are covered, including non-active people

• Material scope:– only statutory schemes; opt-in possibility for

certain contractual provisions (Agirc/Arco)– New: also paternity benefits and pre-

retirement benefits– No special chapter for long term care benefits

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Title I: General provisions

• Reinforcement of equal treatment principle:– Applies even when residing in a third country– Cross-border recognition of facts and events

• Waiving of residence clause for all cash benefits « unless otherwise provided for by this Regulation »(special non-contributory benefits)

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Title II: legislation applicable General rules

• Principle of « unicity » of applicable legislation maintained and even reinforced. Bosmann judgment (2008)

• Economically active people subject to legislation of MS where they work

• Non- economically people: MS of residence• Definition of people who are to be considered as

« active » and who are not• Art 11 IR: elements for determining

« residence »

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Title II: Special rules

• Posting: maximum of 24 months (Reg 1408: 1 year which can be prolonged with another year)

• Self-posting: same maximum period. Activity in other MS must be « similar »IR: actual nature of activity is decisive for determing « similar »

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Title II: special rules

• Activities in 2 or more MS as an employed person: person is subject to legislation of MS of – residence if working for various employers– residence if working for 1 employer and pusrsues

« substantial activities » there (new rule)– Establishment of employer if working for 1 employer

and not pursuing « substantial activities » in MS of residence. If employer is established outside EU: MS of residence (new rule)

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Activities in 2 or more MS

• Activities in 2 or more MS as self-employed. Person is subject tio legislation of MS of – residence if pursuing « substantial part » there– if he does not pursue there « substantial part »:

centre of interest– for determining « centre of interest »: all aspects must

be taken into, account: place of business, habitual nature or duration of activities, number of services rendered and intention as revealed by circumstances

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Applicable legislation: transition from 1408 to 883

• If, as a result of the new rules, a person is subject to legislation of a MS other than that determined under Reg 1408, the legislation determined under Reg 1408 shall continue to apply for a maximum of 10 years « as long as the relevant situation remains unchanged »: art 87 (8) BR

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Chapter 1: sickness, maternity and paternity

• Temporary stay in other MS: European Health Insurance Card

• Planned cross-border health care: case-law based on Treaty only very partially reflected in new coordination system

• Planned health care: autorisation required

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Chapter 1: sickness, maternity and paternity

• Rights of citizens improved on a number of points:– Members of family of frontier workers– Retired frontier workers– Right of pensioners residing in another MS to

get medical care in MS paying the pension

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Chapter 2: accidents at work and occupational diseases

• No substantial changes in comparison with 1408

• Structure simplified thanks to cross-border recognition of facts

• Chapter only has 6 articles (1408/71 had 13)

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Chapter 3: death grants

• No substantial changes in comparison with 1408

• Chapter only has 2 articles (1408 had 4)

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Chapters 4 and 5: pensions

• Not many substantial changes in comparison with 1408

• Reminder: chapters "invalidity" and "old-age and survivors pensions" had been substantially modified by Regulation 1248/92

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Chapter 4: invalidity

• In EU 2 types of benefits: – A systems: amount of benefit is independent of periods of

insurance or residence– B systems: amount of benefit depends on periods of insurance

or residence

• Dual coordination system under 1408:• If person has been insured exclusively under A systems: one

(whole)pension: last MS • In all other cases: chapter "old-age pensions" applies: person

receives 2 or more partial pensions:Every MS calculates first amount under national law (including anti-

overlapping provisions)Every MS also calculates "prorata" pension Every MS grants highest amount of the two benefits

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Chapter 4: invalidity

• Regulation 883/2004: dual coordination system in principle maintained, but:

• "One pension" system only applies if person has been insured exclusively under A system and if all MS concerned are listed as A System in Annex VI. • Example: person has been insured in Belgium,

France and Netherlands. Under 1408: one pension (only NL). Under 883: 3 partial pensions

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Chapter 5: old-age and survivors pensions

• 883 takes into account existence of funded schemes and pension account schemes

• Small changes in anticumulation provisions

• Still very complex

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Chapter 6: unemployment

• Chapter applies fully to self-employed (1408: only Article 69)

• Chapter is the result of compromise

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Unemployment: measures to facilitate geographical mobility

• Unemployed persons receiving ub can go to another MS to seek work without losing ub under certain conditions and limitations:• Maximimum period: 3 months (same as 1408). But: period may be

extended to a maximum of 6 months. • Person loses all entitlement to benefits if he does not return

before maximum period (same as 1408), "unless the provisions of that legislation are more favourable“ (sanction less rigid)

• Benefits are paid directly by competent institution (1408: benefits are paid by institution of MS where persons seeks work; reimbursement by competent institution)

• Person can make use of this possibility several times as long as overall maximum period is respected (1408: provision may be invoked only once between 2 periods of unemployment

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Residing in MS other than competent MS

• Commission proposal: do away with special rules: MS of last employment should pay ub

• Commission proposal not accepted

• Wholly unemployed treated differently than partially unemployed (same 1408)

• Frontier workers treated differently than non-frontier workers (same as 1408)

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Residing in MS other than competent MS

• Non frontier workers : 3 choices (same as 1408). They can• look for work in State of last employment and stay there: receive

benefit from this MS• first look for work in MS of last employment and then go to State

of residence while maintaining 3 (possibly 6) months benefits from MS of last employment

• go directly to MS of residence; receive benefits there.

• Frontier workers : no option as to State paying ub. They receive benefits in State of residence and must register there (same as 1408). But: they can also look for work in MS of last employment. • Is only "supplementary" step.

• Obligations and job-seeking activities in MS of residence have priority

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Chapter 7: preretirement benefits

• Only 1 article (Article 66): aggregation provision does not apply. Reason given by Regulation 883/04 itself (recital 33): only a very limited number of MS have statutory pre-retirement benefits

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Chapter 8: family benefits

• Structure of chapter improved and simplified

• Chapter only has 3 articles (1408 had 12 articles divided in 2 chapters)

• No difference any more between treatment of workers and pensioners

• No difference any more between "family benefits" and "family allowances"

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Family benefits

• Clear priority rules in event of overlapping:

1.rights available on basis of work

2.rights available on basis of pension

3.rights available on basis of residence.

• Example: family resides in MS A; father draws pension from MS B; mother works in MS C. MS competent by priority: firstly: MS C, then MS B, then MS A.

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Family benfits

• If amounts in other MS are higher than MS designated by priority: differential supplement

• Unresolved question: how to calculate

differential amount: comparison by child or by family?

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Chapter 9: special non-contributory benefits

• Same system as Reg 1408 as modified by Reg 647/2005

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Main characteristics of new IR

• More efficient and closer cooperation between institutions

• Exchanges between institutions and persons shall be based on principles of public service, efficiency, active assistance, rapid delivery and accessibility

• Exchange between institutions shall be carried out by electronic means

• Mutual requirement on citizens and institutions to provide each other with information

08/04/23

• Thank you for your attention

2010 - Reg 883/2004 and 987/2009: modernised social security coordination

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