EUROPEAN COMMISSIONEMPL/2108/11 - EN
AdvC02/11Minutes of the 42nd meeting of the Advisory Committee
SECRETARIAT – 20.10.2011
Orig. EN
ADVISORY COMMITTEE
FORTHE COORDINATION OF SOCIAL SECURITY SYSTEMS
Minutes of the42nd meeting of the Advisory Committee
20 October 2011
A.Agenda
B.Approval of Minutes
C.Communications and Questions
I.Legislative developments in the field of social security coordination
II.External dimension of social security coordination
III.Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2010 to mid-2011)
IV.Report on the activities of the Administrative Commission
V.Pursuit of activities in two or more Member States in the field of international transport
VI.Patients' rights in cross-border healthcare
VII.Communication activities by the Commission
VIII.Other business
- Agenda
The Chair, Mr Armindo SILVA,Director of Employment and Social Legislation, Social Dialogue, in the Commission's Directorate-General for Employment, Social Affairs and Inclusion, presented the draft agenda contained in note AdvC 01/11. He explained that Mr Jackie MORIN, Head of Unit of the unit competent for Free Movement of Workers, Coordination of Social Security Schemes within the same Directorate-General would assume the task of Chair in the afternoon part of the meeting.
The representative from ETUCasked to address certain recent developments having led to a regression in the social security protection of mobile persons under point IV. (Report on the activities of the Administrative Commission) of the draft agenda.
At the request of the Chair, the representative from ETUC clarified that she would like to have these recent developments addressed as a sub-item under point IV. of the draft agenda rather than as a separate point of the agenda.
The representative from BUSINESSEUROPE voiced her concern that not all of the documents had been available in German and French language versions before the meeting.
The Secretariat clarified that, with the exception of the lengthy note 05/11, all notes had indeed been available in German, English and French before the meeting. In line with the request made at the last meeting, they were not only uploaded on the Circa server but also sent directly to the members and alternate members as well as the observers by e-mail.
The Chair concluded that the agenda as set out in note 01/11 was adopted with the addition of a sub-item on recent developments having led to a regression in the social security protection of mobile persons under point IV. (Report on the activities of the Administrative Commission).
- Approval of Minutes
At the request of the Belgian employers' organisation representative, the Secretariat clarified that the paper on the international dimension of social security coordination announced under point III. (New Commission initiatives in the field of social security coordination) of the minutes of the last meeting contained in note 02/10 was still under elaboration. A number of issues still had to be address in detail. A new timeframe for the publication of the paper could not yet be announced.
The Chair concluded that the minutes of the 41st meeting of the Advisory Committee on 22 October 2010contained in note 02/10 (BG, CS, DA, DE, EL, EN, ES -REV-, ET, FI, FR, HU, IT, LT, LV, MT, NL, PL, PT, RO, SK, SL, SV) were approved.
- Communications and Questions
No issues were raised.
Legislative developments in the field of social security coordination
The Secretariat presented its note 03/11 concerning legislative developments in the field of social security coordination.
The representative from BUSINESSEUROPE stated that BUSINESSEUROPE supported the modernisation of the EU social security regulations but that there were concerns by employers that the modernisation had not actually made the application of the rules any simpler. In particular, there were concerns about different interpretations of the rules between employers. Moreover, the differences in the rules for employed and self-employed persons were causing difficulties. A request was made for the Commission to ensure better coordination between institutions in order that the correct information was filtered down to the employer level.
The Secretariat responded that the aim of the new Regulations had indeed been to simplify the coordination regime. However, simplification could not make the rules simpler than the situations that they govern and therefore a certain degree of complexity was inevitable. The Commission – together with the Administrative Commission – had worked hard to produce guidance on the rules: one example of this was the Administrative Commission's Practical Guide to the legislation that applies to workers.
- External dimension of social security coordination
The Secretariat presented its note 04/11 concerning the external dimension of EU social security coordination.
The representative from BUSINESSEUROPE stated that she considered the element of reciprocity very important for the relations between the EU and third countries. She asked the Commission when the document on the international dimension of social security coordination will be published, to what extent Regulation (EU) No 1231/2010 applied to occupational pensions and inquired about the interplay between Regulation (EC) No 1231/2010 and the proposal for the Single Permit Directive.
The representative from ETUC stated to be satisfied with the extent to which the EU tries to secure or promote mobility between the EU and third countries. She inquired whether the Commission had more information on how to tackle the political disagreement on amending the EC-Switzerland Agreement on the Free Movement of Persons.
The representative from the Belgian employers' organisations asked whether the Association Council Decision had to be adopted by unanimity.
The Commission clarified that a Commission document on the international dimension of social security coordination was indeed to be issued, but that its precise form (Commission Communication or Commission Staff Working Document) and the exact moment for issuing it were not yet determined.
On the impact of Regulation (EU) No 1231/2010 on occupational pensions, the Commission stated that Regulation (EU) No 1231/2010 only applied to "legislation" on to the social security branches covered by Regulation (EC) No 883/2004. Supplementary pensions based on contractual provisions are excluded from the scope from Regulation (EC) No 883/2004 and hence from the scope of Regulation (EU) No 1231/2010. Member States however had the possibility to notify certain contractual provisions in order to bring them within the scope of application of Regulation (EC) No 883/2004. The portability of pension rights which do not fall within the scope of application of the social security coordination rules would be dealt with by the Directive 98/49/EC on the portability of pension rights.
Furthermore, the Commission explained that Regulation (EU) No 1231/2010 distinguished itself from the proposal for a Single Permit Directive by applying to cross-border movements within the territory of EU. The draft directive concerned movements between a third country and an EU Member State. The proposal for a Single Permit Directive, which would be close to adoption, would afford full equal treatment with EU nationals to third country nationals for benefits falling within the scope of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009. There was however a series of exceptions contained in the draft directive which did not exist in the field of the social security coordination rules. Pensions for example could only be exported to a third country if that possibility also existed for nationals of the MemberState in question under itsnational legislation. This would also be a point where the Single Permit Directive differed from Regulation (EU) No 1231/2010, because the regulation provided for full export to another MemberState.
As to the difficulties in amending the EC-Switzerland Agreement on the Free Movement of Personswere concerned, the Commission reported that it was working on a proposal which would be based on an estimation of what Switzerland would be likely to accept.
Finally, the Commissionclarified that the Council had to act unanimously when it came to the conclusion of association agreements. Article 218 TFEU would foresee that decisions on the position to be taken on behalf of the Union in an Association Council with a view to adopting a decision in the latter on the implementation of the social security provisions contained in the association agreement in question had to be adopted by a qualified majority in the Council.
- Rulings of the Court of Justice concerning the free movement of workers and the coordination of social security systems (mid-2010 to mid-2011)
A representative from the Commission's Legal Service, Mr Viktor KREUSCHITZ, presented his note 05/11 on the rulings concerning the free movement of workers and the coordination of social security schemes during the period between mid 2010 and mid 2011.
The representative from the Czech trade unionsexpressed her regret that the CzechRepublic would be granted an opt-out as regards some provisions of the Charter of Fundamental Rights.
The Chairconcluded by thanking the Member of the Legal Service for his detailed and very clearly presented written and oral contributions.
- Report on the activities of the Administrative Commission
The Chair of the Administrative Commission, MsElzbieta ROŻEK, presented the Secretariat's note 06/11 containing the report on the activities of the Administrative Commission since the last meeting of the Advisory Committee.
At the request of the Netherlands employers' organisation representativewho asked whether the discussion on enhanced cooperation on fighting fraud and errors is also led in respect of the Posting of Workers Directive and the provisions of services within the Single Market, Ms ROŻEKclarified that the discussion is concentrated on the coordination of social security systems only.
The Commission informed that it was preparing a revision of the legal framework established by the Posting of Workers Directive in order to address,amongst others, some abusive practices and loopholes.
The Belgian employers' organisation representativewelcomed the publication of several practical guides on the website of the Commission and requested that all working documents of the Administrative Commission be made available there.
The Secretariat explained that a practical guide must be of a certain quality in order to facilitate the life of citizens, institutions and undertakings. Therefore, it would be necessary to discuss it in detail with the delegations in the Administrative Commission. A publication of the working documents before adoption of the final version of a practical guide by the Administrative Commission could lead to confusion and could thus possibly frustrate the aim pursued with the publication of such a practical guide. The Secretariat went on to state that it was prepared to elaborate as many practical guide as possible, taking into account its workload and the necessity to agree on such guidance in the Administrative Commission. For example, a guide on the relationship between Regulation (EC) No 883/2004 and Directive 2011/24/EU on the application of patients' rights in cross-border healthcare was currently being discussed.
Being invited by the Chair to present recent developments having led, in the view of the representatives from the trade unions, to a regression in the social security protection of mobile persons, the representative from ETUC stated that there had been a deterioration of the situation of mobile – especially frontier – workers in the time of economic crisis and thatthe trade unions had found that the existing rights are not always respected. She referred to situation in which former frontier workers who resides and still reside in Portugal and worked in Spain had been denied unemployment benefits in Portugal. She also mentioned changes in the national legislations operating to the disadvantage of mobile workers.
The Luxembourgtrade unions representative mentioned a new national law which replaced family benefits for children of the age of 18 by study grants. This law would adversely affect mobile workers as the new benefit would be given to persons residing in Luxembourg only.
The Swedish trade union representative mentioned the problem of monitoring the compliance with the provisions on working conditions by trade unions and the feeble activity in this field by national authorities. She mentioned as an example the transport and the construction sectors with chains of sub-contractors, often using posting workers.
The Portuguese government representative clarified that, according to the social security coordination rules and provided that the conditions established by national law are fulfilled – if necessary by aggregating periods completed in another Member State –, the competent Portuguese institution would be responsible for paying unemployment benefits to a former frontier worker who resided and still resides in Portugal and worked in Spain.
The Austrian government representative confirmed that the Austrian authorities had discovered some cases in which they reached the opinion the conditions for posting were not or no longer fulfilled. However, as the workers in question held valid posting certificates (form E101 or Portable Document A1) issued in another MemberState, according to the case-law of the Court of Justice, they were bound to accept them until they are withdrawn by the issuing institution. The dialogue and conciliation procedure established under Regulations (EC) Nos 883/2004 and 987/2009 and under Decision A1 of the Administrative Commission would not prove to be as efficient as foreseen. He announced that Austria would propose amendments to Decision A1 in the Administrative Commission in order to improve cooperation in such cases and to better deal with abusive practices.
The German government representativementioned a case of posting from Germany to Austria in which the validity of a Portable Document A1 was disputed by the Austrian authorities. Although the competent German federal ministry agreed with the position of the Austrian authorities, under national law, it did not have the legal authority to compel the institution which had issued the Portable Document A1 to withdraw it.
The Belgian employers' organisation representativenoted that, in some Member States, Portable Documents A1 are issued in a decentralised way and that the local offices were not always aware of all the rules applicable in this complicated field of law. She took the view that a retroactive withdrawal would not constitute an appropriate measure vis-à-vis the employers and the posted workers because many practical difficulties would occur in such a case.
The Luxembourggovernment representativeclarified that there had been a fundamental change national law. Whereas benefits for children over the age of 18 were previously considered as support for the family falling in the scope of application of the social security coordination rules, the philosophy had completely changed. The study grants in question constituted a personal source income of the children over the age of 18 and therefore no longer referred to the family situation. He voiced the opinion that this personalisation of the income in reality was social progress rather than regression.
The French government representativedrew the attention to problems in the practical enforcement of the social security coordination rules by national institutions and requested a better follow-up as well as an exchange of information and best practices.
The Belgian government representative referred to the pilot project SSCALA (social security coordination – activating local actors) in which a number of Member States where investigating how to better relay practical experience gained at local level to the central level.
The representative from ETUCemphasised that enhanced cooperation would be the way forward and inquired about the role of national labour inspectorates in this context. She argued that better cross-border cooperation of national labour inspectorates could solve some of the problems mentioned.
The Chairagain referred to the current revision of the legal framework established by the Posting of Workers Directive and stated that the general question was how to control that the national legislation of the receiving MemberState is respected. The Commission would plan to present a draft proposal for a directive on the enforcement of the Posting of Workers Directive by the end of the year. However, this draft directive would not change any of the rules on the social security coordination aspects of the posting of workers as social security coordination issues were outside of the scope of the Posting of Workers Directive.
- Pursuit of activities in two or more Member States in the field of international transport
The Secretariat presented its note 07/11 on the pursuit of activities in two or more Member States in the field of international transport. The Secretariat explained the new monitoring exercise which is to be carried out in this sector and informed about the schedule and the discussion in the Administrative Commission on 19 October 2011.
The representative from ETUC emphasised that it was important to involve the social partners in the monitoring exercise.
The representative from BUSINESSEUROPE and the Dutch employers' organisation representative thanked the Secretariat for taking up this issue. The Dutch employers' organisation representative emphasised that the sectors should be consulted as well.
The Secretariat concluded that it would be possible to organise a specific meeting with the social partners and the international transport sector in due time before any conclusions on further actions in the field of the applicable legislation for international transport workers under Regulation (EC) No 883/2004 will be taken.
- Patients' rights in cross-border healthcare
The Secretariat invited Mr Jean-Claude FILLON to make a presentation on the recently adopted Directive 2011/24/EU on the application of patients' rights in cross-border healthcare.
Mr Jean-Claude FILLON addressed the issue from the point of view of the end-users. First of all, he recalled the objectives of the directive which were to codify the Court of Justice's case-law in the Decker and Kohll and guarantee its implementation by all Member States, in coherence with Regulation (EC) No 883/2004. He then pointed out the challenges for the end users. First, the legal framework is quite complex as the directive will have to supplement the coordination regulations, not modify them. He affirmed that there may be a need to merge in the near future both legal instruments for more clarity. Second, there is a consequent lack of clarity on the authorisation procedures which differ from one legal instrument to another, overlapping in some cases. Third, under the directive, although equal treatment is required concerning the tariffs applied, the patient may need to pay up-front, which raises the question whether this is a directive "for the rich". There is a possibility for Member States to issue "vouchers" to guarantee the patients' level of reimbursement. Nothing prevents Member States from applying their third-party payer systems to cross-border patients. Fourth, the directive creates a need for improved information as only initiated persons may understand the array of possibilities offered to them by EU law. The creation of national contact points is of utmost importance in this context. Fifth, there is a risk of a lack of quality and continuity of treatment. Once again, only an enhanced information system will ensure the patients' rights. Therefore the procedures for complaints and determination of responsibility should be transparent and accessible to the patients. The competent MemberState must also play a role in guaranteeing the quality and continuity of the treatment received. Mr FILLON concluded that the application of the directive in a way which effectively protects patients' rights requires Member States to monitor its practical implementation closely. The challenge of effective legal and administrative simplification of cross-border access to healthcare justifies a reconciliation of the directive and the regulation through a merger of the two routes of access to such care at some point.