The Council
common position keeps many of the amendments proposed by the Parliament and
incorporated in the Commissions amended proposal (see the summary of the
amended proposal on these points, dated 15/10/2008).
The
Commission’s positive assessment of the Council common position is based on a
close
monitoring of
the provisions in the light of the four underlying principles of the
Commission’s
proposal:
- organising
more effective and closer cooperation between social security
institutions to enable all stakeholders to benefit from the
modernisation of Regulation 883/04;
- simplifying
the implementing Regulation;
- improving
the transparency of the financial procedures between the institutions
and in respect of persons covered by the Regulation;
- flexibility
and effectiveness in setting the rules.
Overall, the
Commission considers that the vast majority of the modifications made by the
Council contribute to improving the processes and procedures in order to
provide the benefits in a speedier and more efficient way. The changes also
usefully clarify further the roles and responsibilities of the various
parties (for example on posting of workers, on scheduled treatment, on
unemployment benefits and medical examinations and administrative checks).
The Commission
also considers that the text of the Council common position maintains the
delicate balance between the rights and obligations of individuals compared
with the prerogatives of the social security institutions and competent
authorities.
Main
differences between the Commission’s amended proposal and the Council common
position:
- Electronic
exchange of data: the Council has clarified
in a new provision (Article 96) the possibility for a transitional
period for electronic data exchanges between institutions of the Member
States and has set out their limits. The Commission supports this point
as it responds to the needs of some Member States to prepare themselves
whilst ensuring that reaping the benefits of the electronic exchange
would not be deferred beyond a date agreed by all Member States;
- Conversion
of insurance periods: Article 13 contains a
detailed provision allowing the Member States to convert the period of
insurance expressed in different units for the purposes of aggregation.
The Commission’s proposal aimed to simplify this provision derived from
Regulation 574/72. It was based on the assumption that only 5-day weeks
were used. The discussion in Council showed that this was not the case
as some Member States’ legislation still prescribes calculation (at
least for some schemes) on the basis of a 6 or 7 day week (e.g. in the
case of self-employed persons). The Commission therefore agrees to
include this provision in the text for the time being;
- Deadlines
for the introduction and settlement of claims between Member States: the Council considered it necessary to extend the deadlines
proposed by the Parliament and the Commission for the introduction and
settlement of claims and for the settlement of disputes (12 months for
the introduction of claims, 18 months for the settlement of claims and
36 months for the settlement of disputes). Some Member States were of
the opinion that any reduction of those deadlines could only be
introduced in the light of both experience and technological progress.
The Commission shares this approach to a certain extent. The procedure
has been improved and broken down into stages. The Commission acknowledges
the lack of experience with this new procedure. Furthermore, the
Commission accepts the review clause introduced in Article 87 because
the work currently carried out by the Audit Board, which assists the
Administrative Commission for the Coordination of Social Security
Systems, has already produced positive results;
- the costs
of travel and stay of a person accompanying a person with disabilities: the Commission, in agreement with the European Parliament’s
option, recalls that, in accordance with the European Court of Justice
case law and taking into account the limits of a Regulation which aims
to coordinate and not harmonise social security legislation, this issue
is a matter for national legislation. The position of the Council is in
accordance with the current state of law concerning travel costs that
are inseparable from the medical treatment of the insured person. The
Commission therefore accepts the Council common position on this point.
The situation of disabled patients and accompanying persons (and also
persons accompanying children as regards their travel and accommodation
costs) could be dealt with through another legislative instrument with a
legal basis aimed at approximating national legislations.
In
conclusion: the Commission has been careful to
ensure that individual rights are maintained, for instance in the fields of
occupational diseases, accidents at work and family benefits. It recognises
the difficulty of this task given the diversity and specificities of the
national social security legislation of the 27 Member States. The Commission
agrees that a certain degree of flexibility is necessary in the procedures,
for instance with regard to time limits.
The Commission
considers that the Council common position improves some of the measures
contained in the Commission’s proposal. In particular, it clarifies certain
criteria with the result that some of the key concepts set out in the basic
Regulation will be implemented in a more homogenous way, such as
determination of the legislation applicable or posting of workers. The
Commission also notes that the Council common position largely takes account
of the position of the European Parliament. Lastly, the Commission considers
the compromise reached by the Council on the most sensitive issues as the
start of a dynamic process to allow all Member States to align themselves
with the position of the European Parliament. It therefore gives
overall support to the Council common position.