European Commissionempl/01780/11 - En

EUROPEAN COMMISSIONEMPL/01780/11 - EN

Orig. EN

ADVISORY COMMITTEE
FOR THE COORDINATION OF SOCIAL SECURITY SYSTEMS

Subject:External Relations

Note from the Secretariat of 20 September 2011

1. Regulation (EU) No 1231/10 and the rights of third country nationals

On 1st January 2011, the new Regulation (EU) No. 1231/2010 entered into force, thereby extending the modernised social security regulations, Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009, to third country nationals not already covered by these regulations and falling within the scope of the coordination rules. Regulation 1231/2010 replaces Regulation (EC) No 859/2003 for all Member States in which it applies, except in the case of the United Kingdom, which will continue to apply Regulation (EC) No 859/2003 (and by extension the rules in Regulation (EEC) No 1408/1971 and Regulation (EEC) No 574/1972).

Note that Denmark, Iceland, Liechtenstein, Norway and Switzerland did not apply Regulation (EC) No 859/2003 and similarly do not apply Regulation (EC) No 1231/2010.

The principles contained in Regulation (EU) No 1231/2010 are the same as those contained in Regulation (EC) No 859/2003. Regulation 1231/2010 is a "bridge" that allows the EU coordination rules to apply to nationals of third countries who come within its scope.

One important consequence of Regulation (EU) No 1231/2011 is that is allows persons within its scope to benefit from the principle of equal treatment contained in Article 4 of Regulation (EC) No 883/2004. This means that third country nationals legally resident in the European Union and being in a cross border situation shall be treated as if they were EU citizens in the same situation. It should be noted that Regulation 1231/2010, unlike Regulation (EC) No 859/2003, does not contain derogations for Germany and Austria from the principle of equal treatment with regard to family benefits.

Regulation (EU) No 1231/2010, as applied to Regulation (EC) No 883/2004, does not create any principle that requires a pension to be exported to a third country. However, the application of the equal treatment principle means that Member States must grant nationals of third countries covered by the Regulation the same advantages that they guarantee to their own nationals, and to EU nationals and their family members. So where national legislation gives a right to export a pension to a third country, then this right should be accorded under the same conditions to the person who obtains rights by virtue of Regulation (EU) No 1231/2010.

2. Association agreements and draft association council decisions

In October 2010 six Council decisions were adopted on the position to be taken by the EU within the Association Councils as regards social security coordination with Algeria, Morocco, Tunisia, Croatia, Former Yugoslav Republic of Macedonia and Israel[1]. These decisions are based on EU Association Agreements with the countries concerned, which all have a similar clause requiring a limited coordination of social security systems between EU countries and the associated country concerned.

The adoption of these decisions in the Council is the first step towards the creation of a social security coordination regime between these countires and the EU. The regime is more limited than that which applies between EU countries in the context of the EU social security coordination rules. Nonetheless, what is distinctive about these EU Association Council Decisions is that there is no need for the workers concerned to have moved within the EU in order to be able to take advantage of their rights: movement from the third country to and EU country will be enough to trigger the application of rights contained in the decisions. The rights are of course reciprocal: they apply equally to EU workers and their family members, who go to the territory of the associated countries.

In concrete terms, the decisions foresee the following rights for legally employed workers: equal treatment with workers in the host state; export of the full amount of old-age, survivors' and invalidity pensions and pensions in respect of accidents at work and occupational diseases outside of the territory of the paying state; and equal treatment for legally resident family members. The decisions do not cover aggregation of insurance periods. However, if the person has worked in more than 1 EU State, then the right to the aggregation of insurance periods within the EU will arise as a result of Regulation (EU) 1231/10.

The next step in this process is the adoption of the decisions by the relevant Association Councils. A first technical meeting in this respect took place with Morocco in March 2011 and a meeting with Israel is foreseen for late 2011. The Commission intends to propose certain practical administrative arrangements to facilitate the application of the decisions.

3. Extension of Regulation (EC) Nos 883/2004 and 987/2009 to the EEA and Switzerland

Currently, the EFTA countries and Switzerland continue to apply Regulation (EC) No 1408/71 and Regulation (EC) No 574/72 to the cooordination of social security with EU states. This is because the EEA Agreement and the EU-Switzerland Agreement need to be amended before the new modernised Regulations can apply.

On 1st July 2011 the necessary revision to Annex VI of the EEA Agreement was agreed in the EEA Joint Committee. However, before this can enter into force, the Liechtenstein's and Iceland's' constitutional requirements need to be complied with. It is expected that the EEA countries will be able to apply Regulation (EC) No 883/2004 therefore before the end of 2011.

Progress on revising Annex II of the EU-Swiss agreement has been slower due to political disagreement about the correct legal base in Council. It is hoped that a solution can be found for these difficulties and that the modernised regulations will also be able to be applied by Switzerland in the course of 2012.

1

[1]OJ L306, 23.11.10, p. 1.