European Commissionempl/ - En
EUROPEAN COMMISSIONEMPL/ - EN
SS.TM. 02/0940th meeting of the Advisory Committee
minutes – 17.10.2008
ADVISORY COMMITTEE
ON SOCIAL SECURITY FOR MIGRANT WORKERS
Minutes of the 40th meeting
Brussels, 16 October 2009
TABLE OF CONTENTS
1.Adoption of the agenda
2.Approval of the minutes of the 39th meeting
3.Recent developments in the field of social affairs
4.The new Social Security Coordination (Regulation 883/2004 and the new Implementing Regulation)
5.Report by the Chair of the Advisory Committee on changes to Community legislation which have been made or which are in progress
6.Report by the Chair of the Administrative Commission on Social Security for Migrant Workers (CASSTM) on the work of the CASSTM
7.Report on the activities of the Technical Commission on Data Processing
8.Monitoring of the European Health Insurance Card
9.Report addressed to the Advisory Committee on social security for migrant workers concerning judgements delivered by the Court of Justice of the European Communities during the 2006-2007 legal year
10.trESS (training and reporting on European Social Security): findings of the European report 2008, activities and recent developments
11.Employees working in different MemberStates and applicable legislation under Regulation No 883/2004
12.Other business
List of participants
SS.TM. 02/0940th meeting of the Advisory Committee
Adoption of the agenda
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1.Adoption of the agenda
The Chair, Mr Jackie Morin,presented the draft agenda and asked delegations whether they wanted to add items to the agenda.
The representative of ETUC wished that the Advisory Committee plays a more consultative and a less informative role. She raised questions regarding the state of play of the new Regulations, the proposal for a Regulation extending the scope of Regulation 883/2004 to third country nationals and concerning the Proposal for a Directive on Patient's Mobility. She suggested discussing under the last agenda point 'other business' the merging of the Advisory Committees for Social Security and for Free Movement under point 'other business'.
The Chairagreed to the suggestions by referring to the upcoming agenda points and to the meeting the Advisory Committee on Free movement of workers.
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SS.TM. 02/0940th meeting of the Advisory Committee
Approval of the minutes of the 39th meeting
2. Approval of the minutes of the 38th meeting
- Note SS.TM. 02/08
All language versions of the minutes were approved.
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SS.TM. 02/0940th meeting of the Advisory Committee
Recent developments in the field of social affairs
3.Recent developments in the field of social affairs
The Chair recalled that this year a new Commission will be nominated. He referred to the policy orientations of President Barroso presented to the European Parliament which contain the agenda of the new Commission for the following years. One of the main topics will be the rights of the citizens, in particular free movement and equal treatment.
The Chair mentioned in particular the following topics with regard to social affairs: the new Coordination Regulations, the communication on free movement of workers, the reflection on new forms of mobility and the effective implementation of the rights of citizens focussing on the continued effort to inform the citizens about their rights.
The Secretariatthen presented the content of the Communication of the Commission on free movement of workers which is under preparation and which should be adopted during the first trimester of 2010. The aim of the Communication is to give an overview of citizen's right in the field of the community provisions on free movement of workers as established by Article 39 of the EC-Treaty and by Regulation No 1612/68. He explained that the Communication will be divided in 2 parts: The first part aims at identifying the persons who can benefit from the rights conferred by Article 39 of the Treaty and the second part concerns an inventory of the rights of migrant workers and the members of their family. The Communication will furthermore contain an annex and a working document.
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SS.TM. 02/0940th meeting of the Advisory Committee
The new Social Security Coordination (Regulation 883/2004 and the new Implementing Regulation)
4.The new Social Security Coordination (Regulation 883/2004 and the new Implementing Regulation 987/2009)
The Secretariat gave a presentation on the modernised social security coordination and stressed two important principles of the new rules: The effectiveness of rights and the balance between the progress for citizens' rights and the improvement of procedures between institutions. She said that the presentation will be made available on the website of DG EMPL.
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SS.TM. 02/0940th meeting of the Advisory Committee
Report by the Chair of the Advisory Committee on changes to Community legislation which have been made or which are in progress
5.Report by the Chair of the Advisory Committee on changes to Community legislation which have been made or which are in progress
- Note SS.TM. 03/09
The Secretariat presented the developments with regard to the changes to Community legislation in the field of Regulation 883/2004, its implementing Regulation 987/2009 and their Annexes as set out in Regulation 988/2009, as well as concerning the amendments to Regulation 574/72, the proposal for the Regulation on third countries nationals and the Decisions relating to Association Agreements, as described in note SS.TM 03/09.
The representative of ETUC expressed her concerns with regard to the situation of third countries nationals and she stressed that the position of legally resident third countries nationals needs to be equal to the EU nationals and that thesocial rights of third country nationals are sufficiently protected.
The representative of the Portuguese trade unions felt that the current situation of third countries nationals is a step back in the EU integration and emphasized that any discrimination towards third countries nationals should be prevented.
The Chair explained that third countries nationals will remain to be protected by the existing Regulation 859/2003 and he took note of the concerns articulated by the social partners.
The representative of the Belgian employers emphasized the need for enterprises of easily understandable Community legislation, legal clarity, unified interpretation of Community law and he asked that the Advisory Committee could play a more active role in this respect.
The representative of the Belgian employers referred to practical problems concerning the provisional application of legislation applicable, in particular with regard to the retroactive payment of social security contributions and the effects on clients as well as on employers and institutions.
The Secretariat referred to Article 73 (2) of Regulation 987/2009 which addresses this issue and she said that it might be necessary that the Administrative Commission on Social Security for Migrant Workers might need to adopt further clarifications.
The representative of ETUCraised the issue workers and tourists' rights with regard to agreements with San Marino and Andorra. The Secretariat informed that this issue mainly concerns health care of EU nationals staying or residing in San Marino or Andorra but also of nationals of San Marino or Andorra staying or residing in the EU. He said that a cooperation agreement with San Marino will be discussed at the next meeting of the Administrative Commission on Social Security for Migrant Workers and that, concerning Andorra, there is no particular interest on the Andorran side to conclude an agreement.
The Secretariatinformed on the progress made concerning the negotiations on the Patient Mobility Directive in Council. She said that the main concern for DG EMPL will be that there is a consistent articulation between this Directive and the new Social Security Coordination Regulations.
SS.TM. 02/0940th meeting of the Advisory Committee
Report by the Chair of the Administrative Commission on Social Security for Migrant Workers (CASSTM) on the work of the CASSTM
6.Report by the Chair of the Administrative Commission on Social Security for Migrant Workers (CASSTM) on the work of the CASSTM
- Note SS.TM. 04/09
The Chair of the Administrative Commission on Social Security for Migrant Workers, Ms Lena Malmberg, gave an overview on the activities of the past 12 months as described in note SS.TM 04/09. She referred in particular to the preparations for the application of the new Social Security Coordination Regulations and to the intensive work done by the Administrative Commission in order to adopt a package of new Decisions and Recommendations.
SS.TM. 02/0940th meeting of the Advisory Committee
Report on the activities of the Technical Commission on Data Processing
7.Report on the activities of the Technical Commission on Data Processing
- Note SS.TM. 05/09
The Chair of the Technical Commission on Data Processing, Mr Eric Engström, presented the work of the Technical Commission as outlined in note SS.TM 05/09. He emphasized that the main project of the Technical Commission to be carried out is the EESSI Project. In this respect, the main outcomes during the reporting period were the finalization of the work on the business flows and data and on the SEDs (Structured Electronic Documents), done mainly by the ad hoc groups, the agreement on six testing countries and the adoption of transitional provisions for the introduction of EESSI and of portable documentsThe Technical Commission also examined and discussed the launch of an electronic EHIC.
Asked by the representative of the Belgian employers on how to practically proceed when in parallel E-forms, paper SED's and electronic SED's are being used, the Secretariat explained that during the transitional period institutions will have the obligation to accept any relevant information contained in a document, whatever the format of the document is. Reference was also made to Article 5 of the new Implementing Regulation 987/2009 concerning the legal value of documents.
SS.TM. 02/0940th meeting of the Advisory Committee
Monitoring of the European Health Insurance Card
8.Monitoring of the European Health Insurance Card
Note SS.TM.07/09
The Secretariat presented the main conclusions of the report prepared by the EHIC ad hoc group and she referred to note SS.TM.07/09. She also informed participants on the EHIC information campaign explaining that the aim ofthe campaign was to raise awareness, both for people who travel in Europe and are not aware of their rights and for health professionals who, in some cases, refused the EHIC and that this campaign was received with high interest.
With regard to statistics, the Secretariatunderlined the difficulty to present reliable figures for the past periods as they were very disparate in each MemberState. She precised that by March 2009, 181 million EHICs were in use.
SS.TM. 02/0940th meeting of the Advisory Committee
Report addressed to the Advisory Committee on social security for migrant workers concerning judgements delivered by the Court of Justice of the European Communities during the 2006-2007 legal year
9.Report addressed to the Advisory Committee on social security for migrant workers concerning judgements delivered by the Court of Justice of the European Communities during the 2006-2007 legal year
- Note SS.TM.06/09
The representative of the legal service, Mr Viktor Kreuschitz, presented the rulings concerning the free movement of workers and the coordination of social security schemesduring the period between mid 2008 and mid 2009 as referred to in note SS.TM 06/09:
1. RULINGS CONCERNING REGULATION 1612/68 AND DIRECTIVE 2004/38
C-551/07 Sahin
C-158/07 Jacqueline Forster
2. RULINGS CONCERNING REGULATION 1408/71
C-208/07 Petra von Chamier-Glisczinski
Judgment of the EFTA-Court in Joined Cases E-11/07 and E-/08 Rindal and Slinning
Organisation of social security schemes C-350/07 Kattner Stahlbau
3. RULINGS CONCERNING ARTICLE 39 EC-TREATY
Refusal to reduce income tax by the amount of social insurance contributionspaid in other Member States C-544/07 Rüffler
The Chair thanked the Member of the Legal Service for his detailed and very clearly presented written and oral contributions.
The representative of the French government regretted that, with regard to the ruling and the reasoning in case C-544/07, Article 18 of EC Treaty was used and not Regulation 1408/71 in conjunction with Article 39 of the EC Treaty. He stressed the importance to clarify the interaction between Article 18 and Article 39 of EC Treaty, especially with regard to sickness benefits in cash.
The representative of the Legal Service explained the relation between Articles 39 and 18 of the EC Treaty and that, in order to avoid overlapping between these Articles, Article 18 was said to be never applicable when a specific mobility provision exists, ie Article 39.
SS.TM. 02/0840th meeting of the Advisory Committee
trESS (training and reporting on European Social Security): findings of the European report 2008, activities and recent developments
10.trESS (training and reporting on European Social Security): findings of the European report 2008, activities and recent developments
The trESS project manager, Mr Michael Coucheir, presented the trESS project and its developments.
With regard to the trESS project, he explained that it is a project financed by DG EMPL and implemented by the University of Ghent and that it has 4 main objectives: building of networks, spreading of knowledge, reporting from the national level to the EU level and legal analysis including the drafting of thematic reports by the think tank.
With regard to the improved operation of the trESS website, he in particular referred to the correlation table between provisions of Regulation 883/2004 and those of Regulation 1408/71.
With regard to the trESS European Report 2008, based on national reports and on reports of the individual seminars, he presented in particular 2 cross-cutting issues: changes in national legislation or circumstances in connection with the active welfare state, family situations and privatisation, and therelevance of the Regulations' provisions introduced 50 years ago with regard to the flexible migrant worker, posting issues or the influence of other provisions such as Article 39 of the EC Treaty.
The representative of ETUCsuggested using the trESS annual report and the national reports as input for other EU policies. She said that EURES advisors are involved in the trESS network and she asked for a summary report of the trESS annual report to be spread.
The trESS project managerwelcomed that EURES advisors are already registered in the trESS contact data base and that more social partners should be part of the trESS network and participate at the seminars. With regard to the summary report, he replied that there is already an executive summary of the yearly trESS report.
The Chair noted the usefulness of the work conducted by trESS, in particular when feeding into the discussions of the Administrative Commission.
SS.TM. 02/0940th meeting of the Advisory Committee
Employees working in different MemberStates and applicable legislation under Regulation No 883/2004
11.Employees working in different MemberStates and applicable legislation under Regulation No 883/2004
- Note SS.TM.08/09
The representatives of the Belgian and Dutch Federations of Enterprises and Employers presented note SS.TM.08/09 concerning employees working in different Member States and the applicable legislation under Regulation 883/2004.
5 issues causing problems were presented and discussed:
- The concept of the "substantial" part of activities carried out in the country of residence, which will determine whether the worker may be insured in that country or not, may have a yo-yo effect whereby the social security legislation applicable constantly changes.
- The exception contained within Regulation 1408/71 affecting the transport sector is not included in Regulation 883/2004, which means that international transport falls under the general rules including the "25% provision".
- Confusion over the meaning of the phrase, "as long as the relevant situation remains unchanged", contained within paragraph 8 of Article 87 of Regulation 883/2004.
- Article 16 of Regulation 883/2004 offers the possibility of exceptions whereby the assumption is that the person concerned can submit requests to this end. This can lead to unpleasant surprises for companies.
- In principle the Regulation gives rise to changes that have to be applied at any time during the year, leaving companies vulnerable to a lack of notice.
The representative of ETUC considered that the note was quite synthetic and due to the shortage and lack in detail and lack of other aspects such as teleworking it would be difficult to have an in depth discussion. She expressed concerns over the over-emphasis on flexibility at the expense of security. She stated that a social dialogue is required and discussions on new forms of mobility need to be taken into account.
The representative of the Dutch government welcomed the note and they emphasized that legal clarity, clear rules and a uniform application are essential. They announced submitting a note for further discussion at the meeting of the Administrative Commission of 17.11.2009 which would also focus on this issue.
The representative of the French government stated that with regard to 'substantial activity' that the legislation applicable should not change too often, that concerning arrangements under Article 16 of Regulation 883/2004 it should be clarified what is understood by the 'workers interest' and that concerning Article 87 (8) of Regulation 883/2004 it needs to clarified when a situation changes. He also mentioned that these 3 issues probably will stay grey areas where rather than finding a specific rule consultation and cooperation between national institutions and the recognition of the practical situation of various types of workers will be necessary.
The representatives of the Belgian and Dutch employers underlined that their concerns concern both employers and employees and they expressed their expectations to find more clarity at the upcoming meeting of the Administrative Commission.
Asked by the representatives of the Belgian and Dutch employers on the applicability of the new Coordination rules, the Chairreplied that the new rules will be applied by 1 May 2010. He announced that at the meeting of the Administrative Commission on 17.11.2009 the specific issues explored by the representatives of the Belgian and Dutch Federations of Enterprises and Employers will be taken into consideration. He made reference to the Commission communication related to employment and mobility which will be presented by the end of 2010/ beginning of 2011 and where certain issues raised will be dealt with, including the outcome of the questionnaire to social partners on new forms of mobility from 2007, the discussions social partners held on this issue, the work of the Administrative Commission and the work of trESS.
SS.TM. 02/0940th meeting of the Advisory Committee
Other business
12.Other business
The representative of ETUC requested the merger of the two advisory committees on coordination of social security schemes and on free movement of workers.
The Chair replied that there had in fact been a Commission proposal to merge these 2 committees which had not yet been discussed in Council. He stated that employees' and employers' representatives should agree on a common position and then a meeting together with the Commission should take place in this respect.