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New provisions concerning the co-ordination of social security schemes Reg. 883/2004. Competences under the Treaty. No harmonisation National competence to define and build social policy schemes remains unchanged, except Ban on discrimination Equal treatment of women and men
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National competence to define and build social policy schemes remains unchanged, except
Legal base in the Treaty – frequent changes!
Maastricht: Art. 51 + Art. 235 (self employed)
Amsterdam: Art. 42 + Art. 18 (Union citizens) + Art. 308 (self employed)
Nizza: Art. 42 + Art. 308 (Union citizens + self employed) + Art. 63 Abs. 4 (third country nationals)
European Constitution: Art. III-136 + Art. III-267 (third country nationals)
Reg. 1408/71 already aged !
Ø does not cover new risks (long term care, child care)
Ø centred around gainful activities
Ø Parallelism Reg. 1408/71 – ECJ Reg. 1408/71 – Reg. 1612/68
Start: European Council of Edinburgh (1992)
SLIM - Simpler Legislation for the Single Market
Proposal of the Commission December 1998
Ø open material and personal scope
Ø far reaching equalisation of facts
Ø pro-rata-reimbursement for pensioners
Ø 6 Months export of unemployment benefits
Ø Unemployment benefits for frontier workers by the last state of employment
Ø Always highest amount of family benefits
When will the new Reg. 883/2004 enter into force?
on the 20th day after its publication – 27.6.2004
When will 883/2004 apply?
From the entry into force of the new Implementing Reg.
possible impediments on the way to new Reg. 883/2004
Ø Missing Annex X (special non contributory besenfits)
Ø Missing Annex XI (special provisions)
Employed and self-employed persons, students, if they are nationals of a Member State, refugees or stateless
Members of the family irrespective of their nationality
Employed and self-employed have to be covered by a national scheme of social security
All persons covered by a scheme
Nearly no influence on social insurance schemes
Third country nationals remain excluded
Reg. 859/2003 remains applicable -> therefore
For third country nationals Reg. 1408/71 remains in force in its present form
Already applicable – Reg. 1408/71 applies correspondingly
Does not apply in relation to DK, special provisions concerning family benefits granted by AT + DE
All persons subject to the legislation = all persons covered
All schemes covering the risks
Invalidity / sickness / death
Exemption of victims of war still valid
Possible impacts - Annex XI?
Not very much innovation
What exactly is meant?
Old age part-time? Not clear because in many Member States benefits to the employer, not to the employee
Cases Kutz-Bauer und Steinicke – Working conditions under Dir. 76/207
Therefore not at the same time social security?
In any way - No aggregation!
Cases Offermanns und Humer – AT “Unterhaltsvorschuss” covered by Reg. 1408/71
Problems in case of residence of the child outside the competent state
Big success: Advances to maintenance payments excluded from Reg. 883/2004 (Annex I)
Therefore no export but equal treatment (Art. 12 EC - Cases Cowan, Martinez Sala)
Cases Molenaar und Rs Jauch – sickness benefits
No special provision
No special provision
Co-ordination problematic (e.g. child care in DE, mother frontier worker from AT still in employment)
ECJ: Family view correct - case Dodl and Oberhollenzer
New Definition (Art. 70):
Non contributory – no financing by contributions; no problem for supplementary benefits to contributory benefits
New provision (Art. 5):
(lit. a): equal treatment of benefits and income – corresponds to Art. 12 (2) of Reg. 1408/71
(lit. b): general equalisation
“where under the legislation of the competent Member State legal effects are attributed to the occurrence of certain facts or events, that Member State shall take account of like facts or events occurring in any Member State as though they had taken place in its own territory.”
Child care periods in pension insurance
Child care whenever in any Member State?
Important: Connection with competence (always state of residence?)
Is correction of case Kauer possible?
There are only very few possibilities for deviations
Important: Annex XI
Central uniform provision (Art. 6)
In case of voluntary insurance no restriction to persons who have been already gainfully active in that Member State
Via equalisation of facts: equivalent periods could be created by foreign periods of insurance
Impact e.g. on periods of military or civilian service,
School or university studies if equivalent periods under national legislation
Insurance only in one Member State allowed – various designations of competent State
Most important changes:
Important amendments (including those brought by Reg. 631/2004 to Reg. 1408/71)
No difference between employed or self-employed persons / pensioners / stay abroad of employed persons / students / holidays (since 1.6.2004)
Entitlement depends on nature of the benefit and the expected length of the stay
Direct contact to the service providers (doctors, hospitals) abroad (since 1.7.2004)
E 112 authorisation has to be granted if treatment cannot be given within a time-limit which is medically justifiable (Reg. 883/2004)
New since 1.6.2004: EHIC or replacement form
States with transition period (AT, IT, LV, LT, MT, NL. PL, PT, SK, HU, UK, CY) – introduction at the latest an 1.1.2006
In many Member States combination with national cards
Since 1.6.2004 in any case new E 111; after end of transition period for a Member State: Replacement form
Family members (like active frontier workers) automatic choice between benefits in state of residence or employment –if no restriction in Annex III
Retired frontier workers: right to continue treatments already begun in state of employment
Retired frontier workers: continued right of choice if frontier worker during 2 years of the last 5 years and entry in Annex V
More rights also for pensioners who receive treatment in the competent state – entry in Annex IV
Fight against inequalities especially in case of pensioners
Principle: real cost refund
Lump-sum of 85 %, state of residence costs of E 112, competent state pays all other benefits
Lump-sum of 80 %, if competent state pays all benefits in its territory (Annex IV), E 112 costs by state of residence, competent state pays all other costs of treatment outside the state of residence
Benefits in kind (e.g. treatment after an accident) – same principles as in case of sickness
Accident pensions are paid by the state where the accident occurred or in which the last period of exposition is reckoned
Internal pro-rata of costs in case of special lung diseases (sclerogenic pneumoconiosis)
No major amendments
Accident insurance: No pro-rata in case of sclerogenic pneumoconiosis
Pensions: Equalisation of requests still open if information is missing
Pensions: Anti-Cumulation: partition of deductible amount and not any longer of the amount of the benefit which will be suspended
Pensions: Problems with national reforms (funded schemes)
Exportation: max. 3 months; receipt of benefits in previous state of employment for 4 weeks, return, otherwise loss of entitlement
Frontier worker: unemployment benefit under legislation of state of residence
Seasonal workers: either stay in state of employment, export of unemployment benefit for 3 months or immediately unemployment benefit from state of residence
Exportation: same conditions, but 3 + 3 months
Frontier workers: unemployment benefit from state of residence but search of employment also in previous state of employment
Seasonal workers and frontier workers: reimbursement of unemployment benefit by previous state of employment: 3 months + 2 months (if insurance 12 months during last 24 months)
Difference between active persons (all family benefits) and pensioners (only family allowances)
Priority of gainful activity over residence
Differential amount by state which has not the priority
Clear new provision, identical for all persons for all benefits – residence is not relevant
Clear hierarchy of competences
Also in other fields essential amendments:
Has the simplification been successful?
+ Central provision on equalisation of facts
+ Central provision on aggregation
+ Provisions and Annexes simplified
+ Start for special co-ordination of long term care benefits
No! Complex parallelism of Reg. 1408/71 and Reg. 883/2004
Reg. 1408/71 remains applicable for:
No farewell to Reg. 1408/71 – but farewell to simplification!