1. Reg 883/2004 and 987/2009:
modernised social security
coordination
London, 2 July 2010
Rob Cornelissen
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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2. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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3. 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)
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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4. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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5. 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…. »
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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6. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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7. 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)
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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8. 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 »
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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9. 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 »
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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10. 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)
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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11. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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12. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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13. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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14. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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15. 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)
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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16. Chapter 3: death grants
• No substantial changes in comparison with
1408
• Chapter only has 2 articles (1408 had 4)
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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17. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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18. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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19. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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20. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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21. Chapter 6: unemployment
• Chapter applies fully to self-employed
(1408: only Article 69)
• Chapter is the result of compromise
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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22. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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23. 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)
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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24. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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25. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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26. 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"
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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27. 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.
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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28. 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?
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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29. Chapter 9: special non-contributory
benefits
• Same system as Reg 1408 as modified by
Reg 647/2005
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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30. 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
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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31. • Thank you for your attention
European Commission, DG Employment, Social Affairs and Equal Opportunities 07/12/12
© 2010 Rob Cornelissen
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