2010 - New Social Security Regulations 883/2004 & 987/2009

Editor's Notes

• #2: Shortly introduce yourself [what you do; your background, etc.] Working for the Unit dealing with Social security coordination and free movement of workers – social security coordination sector…
• #3: [Prepare a personal introduction. … Exciting time After 10 years of intensive negotiations the new harmonised rules on coordination will enter into force on … … ] First, we will look at the more general picture of the modernisation of the coordination rules to understand better the changes in the [insert the topic of the seminar] sector. Then, provide an update on recent and and future developments. The first part of the presentation will end with a brief overview of the Commission’s newly-developed information tools . In the second part of the presentation , we will look at the specific changes in the [insert the topic of the seminar] field.
• #4: Coordination s’appuie sur un mécanisme de coopération unique qui s’appuie sur la CASSTM Cette dernière, épaulée par la CT et la Commission des comptes organise les travaux et donne vie au Règlement. Dans le contexte de la préparation des nouveaux Règlement, la CA joue un rôle essentiel.
• #5: As the illustration shows, the EU Coordination Regulations are living instruments . They started as Regulations 3 and 4 of the European Coal and Steel Community in 1959 and were then replaced with Regulations 1408/71 and 574/72 in 1972. The Regulations have not stood still – they have gradually evolved through a series of amendments. The legislative process on the new Regulations 883/2004 and 987/2009 started back in 1998 when the Commission presented a proposal to simplify and modernise Regulation 1408/71. On 29 April 2004, the EP and the Council agreed on a complete review of the coordination system by adopting Regulation (EC) 883/2004, which entered into force on 20 May 2004. However, it shall apply from the date of entry into force of the implementing Regulation (EC) 987/2009 – 1 May 2010 = the date of the entry into force of this legislative package (883/2004, as amended by Regulation 988/2009, and implemented by Regulation 987/2009). In the meantime, 12 new member states accessed the EU. Although one Regulation is called “Basic Reg.” (883) and the other “Implementing Reg.” (987), both Regulations have equal value. Cannot apply one without the other. [If asked: in case of a conflict of the wording of the two Regulations, such as on the electronic data exchange, the more recent Regulation 987 prevails.] Unlike the relation between existing Regs 1408/71 and 574 where 1408 set up the basic principles and 574 serves rather as a user manual on how to apply 1408, the situation with the new Regulations is slightly different. Due to a long legislative process and 5 years delay between finalising of the basic regulation and implementing regulation, some new important principles have been introduced into the Implementing Reg. When applied in practice, it is therefore important to consult the relevant provisions in both Regulations and keep in mind that they have the same legal value and need to be applied in conjunction. Based on the same fundamental principles which have been working for the past 50 years, the modernised coordination rules focus on making the system work more efficiently and on better information for citizens. However, as we work with constantly evolving instruments, we expect the Regulations to keep on growing . The objective of the EU social security coordination can be achieved only if the EU coodination provisions are well adjusted and in coherence with the economic and social developments in the national social security legislation it aims to coordinate. Other legal instruments are related to the co-ordination system such as international agreements concluded by the EU. Regulation 883/2004 which replaces Reg 1408/71 Reg 987/2009 replaces Reg 574/72 Pending Proposal for a Regulation replacing Reg 859/2003 extending the provisions of Regulation 883/04 to nationals third country nationals
• #6: Key themes of the modernisation: Updating so rules correspond with current social practices (eg. Provision for child-raising periods) – this is self-explanatory. The Regulations have been modernised to take account of social developments in the law of the Member States – so for examples, the inclusion of art. 44 of the new IR to allow the coordination rules to take into account child-raising periods. Simplification (eg. Personal scope) - Simplification was one of the motors of the modernisation project. The Regulations remain complex, but we can point out certain significant simplifications, such as the simplification of the personal scope to “all persons who are or have been subject to the legislation of one or more Member States” in art. 3 of Regulation 883/04. Some examples of simplification: One single definition in Article 2 setting out the personal scope of the Regulation (old Annex 1 deleted) – applies to all EU nationals Common principles grouped together in Title I and no longer repeated for specific risks (Articles 5 and 6 – Assimilation of facts and Aggregation of periods) One set of provisions on applicable legislation Improved protection of rights (eg. – improved information and assistance to citizens– Articles 2 & 3(1) IR ). The new Regulations provide better protection for citizen’s rights. Of particular significance is the new Article 3(1) IR for the provision of information to citizens to enable them to assert their rights under the Regulations. This has to be read in conjunction with Article 2(1) IR. It sets out the standards that institutions should achieve: in particular, the requirement that exchanges with citizens shall be based on principles of efficiency, active assistance and rapid delivery. These principles were of great importance to the EP. Some examples: New rules to make a person provisionally subject to legislation of one Member State where disagreement between institutions (Article 6 IR) Personal scope widened by including also non-active persons (Article 2 BR) Equal Treatment principle extended by Article 5 BR (assimilation of facts) Clarification – incorporation of ECJ case-law in a range of areas. Over the last decades the Court has issued a number of rulings in the social security field. The Regulations have incorporated the case-law of the Court of Justice of the EU. So, for example, the principle of assimilation of facts and events as developed by the Court is now incorporated into Article 5 of Regulation 883/2004. For example: C-55/00 G ottardo – see Article 4 BR C-290/00 Duchon – see Article 5 BR C-368/98 Vanbraeckel – see Article 26(7) NIR C-178/97 Banks – see Articles 5(1) and Article 6(3) NIR Strengthened and Streamlined institutional procedures (Art. 4 IR – electronic data exchange). This underlines all of the modernisation project. The aim of the modernised Regulations is to put in place more efficient procedures: improved reimbursement procedures; strengthened cooperation; faster exchange of information. This introduction of the electronic exchange of social security information (EESSI) is a central part of this. A team of colleagues in the EC, together with the national experts selected by the national institutions, are working to make EESSI project a success.
• #7: Inclusion of paternity benefits (as equivalent to maternity benefits) (Article 3(1) BR); New procedures for recovery or offsetting of benefits provided but not due (Articles 71-86 IR) Improved and speedier procedures for reimbursement of healthcare costs between Member States (Articles 62-67 IR) – stricter deadlines, poss. to charge interest, actual costs reinforced Requirement for data to be exchanged electronically (Article 4 IR) Inclusion of funded pension schemes (see Article 52(5)BR and Annex VIII, Part 2); Inclusion of pre-retirement benefits (Article 66 BR)
• #8: EU social security rules are not a harmonisation – they are merely a system of coordination between 31 often very different systems. In order that these rules work properly, a close cooperation between national social security institutions is essential . Already contained in the case-law of the Court (Banks, Fitswilliams, Herbtsch-Kiere). This principle of administrative cooperation is now contained in Article 76 of 883/2004. The modernised coordination rules work to strengthen and deepen this principle of cooperation. This is evident in the IR in particular – recital 2 IR. The implementation of the EU coordination provision has in the first place to be guaranteed at national level. In the Member States this involves public authorities, competent institutions, social partners, judges, representatives of non-governmental orgnanisations (NGOs) and other experts. It is you who has to take decisions or give advice in numerous cases submitted to you.
• #9: An important aspect of this cooperation is mutual trust. The institutions in other Member States should in principle trust and accept in good faith the assessment carried out by the other institution.
• #10: Article 76(4) of Regulation 883/04: “The institutions and persons covered by this Regulation shall have a duty of mutual information and cooperation to ensure the correct implementation of this Regulation…” Art. 76 BR ( Good Cooperation and the Mutual Provision of Information) invigorated through new specific provisions requiring enhanced administrative cooperation, for example: Art. 2(1) (public service, efficiency, active assistance, rapid delivery, accessibility), Art. 3 IR (requirement to provide information) Art. 47(1) IR (Contact Institution) Art. 6(3) and 16(4) (dialogue in case of disagreement) Art. 5, 6, 16 and 60 IR Art. 75 IR (recovery of undue payments) AC Decision on dialogue and conciliation procedure An important aspect of this cooperation is mutual trust. The institutions in other Member States should in principle trust and accept in good faith the assessment carried out by the other institution. It goes without saying that institutions should nevertheless be able to contact each other (phone, e-mail, fax…) in order to check, or confirm, information which has been already provided. The overall aim of new Regulations is to strike a balance between making citizens’ rights more effective and at same time improving institutional processes Further info: Art. 2(1) IR: “Exchanges between MS authorities and institutions and persons …shall be based on principles of public service, efficiency, active assistance, rapid delivery and accessibility, including e-accessibility, in particular for the disabled and elderly.” Art. 3 IR: requirement on institutions and citizens to provide information. “MS shall ensure that the necessary information shall be made available to the persons concerned in order to inform them of the changes introduced by [the Regulations] to enable them to assert their rights. They shall also provide user-friendly services.” Article 47(1) IR – duty on Contact Institution to promote cooperation between other institutions concerned by claim Explicit provision for dialogue between institutions in the event of disagreement about applicable legislation (Article 6(3) and 16(4) IR) Explicit provision for dialogue in the event of uncertainty about applicable legislation in case of family benefits (Article 60 IR) New procedure for recovery of undue payments (Article 75 IR)
• #11: A new safety net , where there is a disagreement between institutions or authorities of two or more MS about: Validity of a document or the accuracy of facts on which the document is based (article 5 IR) The determination of applicable legislation (Article 6(1) IR) Or about which institution should provide benefits in cash or in kind Details of the procedure are set in Decision A1 of the Administrative Commission The procedure provides two distinct stages: Compulsory dialogue Optional conciliation – if the dialogue is unsuccessful, the matter may be referred by the competent MS to the AC (optional); an institution canno on its own decide to refer a disagreement to the AC Conciliation Board will be set up by AC.
• #18: Strengthening of “lex loci laboris” principle Economically active people subject to legislation of MS of work Activity as employed or self-employed person Art. 1(a) and (b) BR: any activity or equivalent situation treated as such for the purpose of social security legislation of the MS in which such activity or equivalent situation exists Exceptions: Civil servants: legislation of MS to which administration which employs him is subject Non-active people (e.g. retired): subject to legislation of MS of residence Unemployed persons frontier worker (who receives unemployment benefit in that state): subject to legislation of MS of residence
• #23: In future also for several employers.
• #25: in the future: only if substantive activity
• #27: EHIC will always be issued by the competent State of pensioner. Incorporation of existing case-law on provision of healthcare abroad (Vanbreackel principle) Improved rules on reimbursements of healthcare costs
• #28: In addition to investigating the claim for pension, this institution shall promote the exchange of data, the communication of decisions and the operations necessary for the investigation of the claim, and supply the claimant with any information relevant to the Community aspects of the investigation and keep him/her informed of its progress. If claimant believes that his rights may have been adversely affected by the interaction of decisions taken by two or more institutions, he has the right to a review of the decisions by the institutions concerned. Special rule determinig which MS shall take into account child-raising periods for the purposes of pension award.
• #30: Ie to establish which MS shall pay the full benefit and which shall provide the supplement. Only one category of family benefits. The special chapter on family benefits for children of pensioners and for orphans was repealed.
• #31: One of the main innovations introduced by the new Regulations is the obligation for Member States to exchange social security information only by electronic means (article 4 IR). In order to reach the objective set by the Regulations, an integrated system providing a common secure framework is to be set up. This new system is called the EESSI system (Electronic Exchange of Social Security Information). Currently 31 countries participate in the information exchange (EU27 + Iceland, Norway, Liechtenstein and Switzerland). EESSI is a messaging system that will allow national social security institutions to exchange social security information electrocally in a secure manner. It replaces the current paper E-forms. Legal framework: Article 78 of Regulation 883/2004 Article 4(2) of Implementing Regulation (IR): “ The transmission of data between the institutions or the liaison bodies shall be carried out by electronic means either directly or indirectly through the access points under a common secure framework that can guarantee the confidentiality and protection of exchanges of data.”
• #32: The EESSI system consists of : a central application (Coordination Node) to be hosted in the Commission's Data Centre an application to be deployed in the national administrations Gives effect to the principle of enhanced cooperation between the Member States This will lead to an substantial improvement of the services to the citizens, who will receive payments of social security benefits more timely and accurate. Institutions will be connected to EESSI via Access Point which will ensure transfer of the messages from the national application of the sending institution to the central application and delivery to the national application of the addressee institution. Together these applications should enable Member States' social security administrations to manage the exchange of social security information by electronic means across country boundaries. EESSI should play a major role in facilitating cooperation between institutions and to contribute to a better enforcement of the rights of the citizens and granting of benefits in a speedier way. 1st May 2010 is also the start of a two year transition period during which Member States with the support of DG EMPL will have to prepare their national applications for the this changeover to the new electronic data exchange of social security information.
• #33: EESSI implementation - as regards the exchange of information between institutions, there is a transitional period of 24 months, within which the Member States may prepare themselves for the electronic exchange of social security information. This period will begin when the new Regulations enter into force and thus will end on 30 April 2012. Decision on transitional period for EESSI (Decision E1) Para 1 of Decision E1: “Guiding principle shall be good cooperation between institutions, pragmatism and flexibility.” Safeguarding of citizen’s rights No « Big Bang » Phasing in sector-by-sector (as becoming EESSI-enabled via Access Point(s)) Member State may also choose to join EESSI only when all sectors are enabled Principle of no “mix and match” Exchange between Member States during TP: either inside or outside of EESSI No « Mix and Match »: only EESSI enabled sectors can exchange information via EESSI Without prejudice to bilateral arrangements (e.g. joint testing, training, etc.)
• #34: SEDs: Under the old Regulations, the information exchange between the national social security institutions take place with E-forms. Under the new Regulations the data exchange (through EESSI) will takep place by so-called Structured Electronic Documents (SEDs) In contrast to Portable Documents, SEDs will not be directly relevant for citizen In autumn 2009 an expert group under the auspices of the Administrative Commission was set up to finalise the structured Electronic Documents (SEDs) for the different social security sectors. The first batch contained all SEDs that need to be ready for use by 1st May, as there are no existing adequate E-forms, applying the procedures for these sectors / areas as required under the new Regulations. The first batch consists of all family benefits SEDs, the majority of the unemployment benefits SEDs, several sickness SEDs as well as the pension SED on child raising periods. Nov 2010 - all SEDs should be available in all languages During the 24 Month transitional period, several formats of documents will have to be managed by institutions as they move from the current system to the new one; the use of these different documents should not lead to a loss of rights for the citizens thanks to effective cooperation between the institutions
• #36: EESSI Newsletter Until now the newsletter has been used as the main channel of information supplied by DG EMPL. As the Member States are a key player in this project, the newsletter will in the future provide a user space for the Member States. You can find more information on the idea for such a forum at the end of this newsletter.
• #37: AC Decisions and Recommendations – see next slide Portable documents – see slide below Structured Electronic Documents (SEDs) – slides above Miscellaneous Amendments of Regulations 883/2004 and 987/2009 Expected date of adoption: 11/2010 The modernised Regulations are the result of ten years of negotiations between Member States The need for modernisation case from changes within national legislations The updating is of a technical nature and does not alter the Regulations fundamentally The MS have been given the opportunity to send in proposals for the miscellaneous amendments 2010 In June the Administrative Commission will be consulted with the aim of reaching an agreement – then the Commission will draw up a Commission Regulation and will send a proposal to the EP and Council for adoption
• #38: Role of the Administrative Commission Regulations on social security coordination set up a special committee – the Administrative Commission which is made up of governement representatives from each Member State. European Commission attends its meetings in an advisory capacity and provides also secretariat services. Where institutions of Member States encounter difficulties with meaning of a provision in the Regulations, then the AC can be asked to give guidance in the form of a Decision or a Recommendation. AC Decisions and Recommendations: The Administrative Commission on social security for migrant workers adopted numerous Decisions that clarify the application of EU rules on social security coordination. Under Regulations 1408/71 and 574/72 the AC adopted over 120 D&R. On the occasion of transition from 1408/71 to 883/2004, the AC reviewed the existing D&R and adopted a package of new D&R and achieved to significantly reduce the number to 25. Lists of current Decs and Recs is available on Commission‘s website. Not binding, but AC decisions are taken by all MS which are bound by the principle of cooperation in good faith It is generally acknowledged that AC decisions have an authoritative effect and represent an important aid to the interpretation and practical common application of the Regulations Therefore they should be taken into account by the competent authorities of the MS, institutions and stakeholders New Decisions and Recommendations should be published on 24 April (OJ number not yet known) [Recommendation: You may insert a slide with a list of relevant decisions with a brief description for a sector, which was selected as the main topic of your seminar ]
• #39: Portable Documents: [note: you can mention more in detail PDs relevant to the topic of the seminar] PD = A document that a social security office issues to a citizen; some PDs inform the holder, other grant them rights or allow them to start necessary procedures The document may be for the eyes of the holder only or may need to be shown or handed to an official They contain private information about social security rights At the meeting of 17-18th March, the Administrative Commission adopted the portable documents A1, S1, S2, S3, DA 1, U2 and U3. The Commission is currently in the process of preparing definitive formats for the Portable documents, which will then be translated and sent to the Member States for linguistic review. Although no new E-forms should be issued from May 2010, some offices may continue to do so exceptionally for practical reasons until April 2012 at the latests; the EHIC will continue to be issued in the pre-2010 format even after 2010; some E-forms may continue to be valid until they expire or are replaced (their validity may go well beyond 2012)
• #40: Third country nationals: The Commission’s proposal (COM(2007)439), which aimed at extending the provisions of Regulations 883/2004 and Implementing Regulation 987/2009 to third country nationals who are not yet covered by these provision solely on the ground of their nationality, did not achieve agreement within the Council in 2009. Discussions on the proposals continues in 2010. For the time being, the Regulations 1408/71 and 574/72 (respectively Reg. 859/2003) will therefore apply for third country nationals legally residing in the EU and being in cross-border situation. ES Presidency aims to adopt the Common stand point of the Council at the meeting of 7 June (remark: no more derogation for family benefits in DE and AT) 2nd reading expected in autumn 2010 Remark: DK is not taking part in this instrument according to the specific protocol; IE has opted in; UK has not excercised to opt-in Association Council Decisions: Proposals for Decisions of the respective Association Council with regard to the implementation of the provisions in the field of social security as contained in the agreements with Marocco, Tunesia, Algeria, Israel, FYROM and Croatia With QMV we could foresee to have agreement on 7 June
• #41: Communication on the intrnational dimension of social security coordination Expected date of adoption: first half of 2011 The main problems currently identified: lack of coherence due to a defragmented use of bilateral agreements The objective is to take stock of the current EU instruments concerning Thrist Country Nationals and the EU Neighbourhood Policy and to explore further possibilities of cooperation with third countries and/or regions of strategic importance to the EU (e.g. EU-Latin America-Caribbean Countries) Long-term care benefits: Cases Molenaar und Rs Jauch – sickness benefits No special provision; Nevertheless hope? Art 34 to avoid overalpping; deducting the benefit in kind from the benefit in cash Annex X – special non contributory benefits – case Hosse ; pressure to elaborate a special chapter on coordination of such benefits New patterns of mobility - Communication on groups of workers with high levels of intra-EU mobility and their social security protection – foreseen in April 2011 trESS examined the social security coverage for new forms of mobility in their Think Tank reports 2008 and 2009 Member States' experts discussed the findings within the Administrative Commission agreed on the need for interpretative guidelines to be followed by, eventually, legislative amendments, especially in order to deal with international transport. The Communication will look at the existing rules determining the social security coverage of highly mobile groups of workers with mobility as a typical characteristic of their work (such as artists, researchers), its possibilities and limits, and elaborate guidelines for the implementation of the current legal framework and explore possible adjustments.
• #42: A redesigned, improved and updated website: – as from 1 May 2010 Other languages will be available later in May. Structure of the website follows structure of the Regulations. User-friendly language. Links with TRESS, Direct Europe, EURES, EHIC, ... Part of the website is dedicated to specialised information for the institutions and will contain: Legislation Other official documents (e.g. AC decisions and other agreements) General presentation of portable documents General presentation on EESSI Information about support tools (e.g. call for proposals; trESS network)
• #43: Access to national information page: By the end of 2010, a new updated version will be available (to be updated by MISSOC). Links to national websites
• #44: OTHER INFORMATION SOURCES: An updated “Small Guide” on citizens’ rights – EN version available from April; publication in all languages foreseen by the end of May 2010 Posting Guide – to be available on 1st of May Supplementary guidance given by the Administrative Commission Not legally binding Explanatory Notes on key concepts in the new Regulations – DG EMPL website; Designed to set out some key concepts of the system of the modernised coordination in a concise way A work in progress – reflection of the state of play at a certain point in time in accordance with the knowledge and experience available Supplementary guidance given by the Administrative Commission Not legally binding An Information campaign for citizens planned for 2nd half 2010 – posters, leaflets, advertising campaign foreseen in 5 Member States
• #45: Dissemination of information is one of the most important challenges for the success of modernised coordination. The wider public, but also the national or regional administrations applying the EU coordination rules have to receive the necessary information for their correct national implementation. First time in 2010, the European Commission has published a call for proposals to financially support transnational actions: promoting the administrative exchange of social security information among Member States, with a view to assisting them in their implementation of Regulations (EC) No 883/2004 and 987/2009; promoting transnational cooperation between institutions dealing with social security, exchanges of experience, dissemination of best practices and training initiatives developed at the national level; raising awareness and providing a better service to the public; improving citizens' knowledge on their rights, on free movement and on the coordination of social security schemes. In 2010, deadline for submitting proposals is: 17/05/2010 The call will be again published in 2011.