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C 73/42 EN Official Journal of the European Communities 9.3.

98

Opinion of the Economic and Social Committee on the ‘Proposal for a Council Regulation
(EC) amending Regulation (EEC) No 1408/71 on the application of social security schemes to
employed persons, to self-employed persons and to members of their families moving within
the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing
Regulation (EEC) No 1408/71’

(98/C 73/09)

On 11 September 1997 the Council decided to consult the Economic and Social Committee,
under Article 198 of the Treaty establishing the European Community, on the above-mentioned
proposal.

The Section for Social, Family, Educational and Cultural Affairs, which was responsible for
preparing the Committee’s work on the subject, adopted its opinion on 13 November 1997.
The rapporteur was Mr Angelo.

At its 350th plenary session (meeting of 10 December 1997), the Economic and Social
Committee adopted the following opinion by 104 votes in favour, 3 against and 4 abstentions.

1. Introduction in Regulation (EEC) No 1408/71, which the present


proposal updates and amends.
Regulations (EEC) No 1408/71 and (EEC) No 574/72
were consolidated in a single official text by Regulation 2.4. Comprehensive rules are needed on the transfer
(EC) No 118/97, and were amended and updated by of all pension rights, whether statutory or supplemen-
Regulation (EC) No 1290/97. tary. Supplementary schemes have been growing steadily
in recent years, especially among more highly skilled
The present proposal seeks mainly to amend the two persons who are more likely to move around. It is to be
regulations on the basis of the amendments which hoped that real progress can now be achieved in
Regulation (EC) No 3095/95 made to Article 95 of removing obstacles to mobility.
Regulation (EEC) No 574/72.

The proposal is also designed to update the regulations


to take account of changes in national legislation 3. Analysis of the proposed amendments
and certain bilateral conventions concluded between
Member States.
3.1. General point

2. General comments
3.1.1. Article 95 of Regulation (EEC) No 574/72
regulates the refund on benefits in kind provided under
2.1. The Committee welcomes the amendments health and maternity insurance to pensioners and to
which update the rules for applying of social security members of their families who do not reside in a Member
schemes to the various categories of insured persons. State under whose legislation they receive a pension and
The Committee also supports the proposals which, are entitled to the benefits in kind concerned.
while not providing specific updating, nevertheless
simplify and clarify situations that have led to
implementing difficulties. 3.1.2. The refund is paid as a lump sum. Until
Regulation (EC) No 3095/95 entered into force, the sum
was calculated on the basis of the average cost per
2.2. A clear and reliable reference framework in this family. Article 2 of Regulation (EC) No 3095/95 made
area will make it easier for the persons concerned to it possible to determine an average cost per person,
move within the EU. This will further one of the basic thereby bringing the lump sum closer to the real cost of
principles of the Union, namely the free of movement of the benefit.
persons.
As well as making the amendments necessitated by the
2.3. Here the Committee is pleased to note — while new system for calculating the lump-sum reimbursement
not yet entering into details — that the Commission has (which in practice becomes a lump-sum reimbursement
also issued a proposal for the initial regulation of per person), the proposal also seeks to regulate certain
transfer of supplementary pension rights. This will situations where the relations between the institutions
complement the rules on statutory schemes laid down of the Member States are unclear.
9.3.98 EN Official Journal of the European Communities C 73/43

3.1.3. It should be borne in mind that where a lump It should be noted that — in contrast to the new
sum is not provided, the refund on benefits in kind Article 29 — this will also apply when the family
(hospitalization, etc.) is related to the effective cost and member is staying in the competent state.
made on the basis of the legislation of the country of
residence of the pensioner.

3.2.3. A m e n d m e n t o f A n n e x I ( P a r t I ) ,
In contrast, the relations between the institutions of the Annex II (Part II), Annex IIa,
state of residence and those of the state responsible for Annex IV and Annex VI
the pension are regulated on the basis of the lump-sum
system.
These amendments simply update the annexes, so as to
align them with changes in the legislation of the countries
There is always a difference (whether large or small)
concerned. They are essentially formal amendments and
between effective costs and a lump-sum repayment,
do not require particular comment.
because the cost of benefits in kind differs from one
Member State to the next. Hence the concern to limit
such imbalances as far as possible.
3.3. Article 2: amendments to Regulation (EEC)
No 574/72

3.2. Article 1: amendments to Regulation (EEC)


No 1408/71
After amending Regulation (EEC) No 1408/71, the
Commission proposes to amend certain articles of the
implementing regulation. These too follow on from the
The Commission proposes to amend Articles 29 and 31. amendments which Regulation (EC) No 3095/95 made
These concern cases where benefits in kind are received to Article 95 of Regulation (EEC) No 574/72.
by members of the family of a pensioner who are resident
(Article 29) or are staying (Article 31) in a Member State
other than the one in which the pensioner resides.
3.3.1. A m e n d m e n t o f A r t i c l e 2 9 ( 1 ) , ( 2 )
and (5)

3.2.1. A m e n d m e n t o f A r t i c l e 2 9 ( 1 ) ( a )
The Commission proposes to specify that the obligations
refer to family members who reside in the same Member
State as the pensioner.
This establishes the new principle that if the family
member resides in the Member State which is responsible
for paying the pension (the ‘competent state’), the
benefits in kind are provided by that state and the cost 3.3.2. A m e n d m e n t o f A r t i c l e 3 0 ( h e a d i n g
is borne by it, even if the pensioner resides in another and paragraphs 1, 3 and 5)
state.

This contrasts with the existing legislation, which obliges These amendments follow directly from those made to
the state of residence of the pensioner to pay the benefits Article 29 of Regulation (EEC) No 1408/71 regarding
to family members who reside in the competent state. the new situation of pensioners’ family members who
reside in the competent state. Both the heading of the
article and the conditions to be fulfilled are altered
accordingly. A new paragraph also has to be added at
the end. Its wording is taken from another new provision.
3.2.2. A m e n d m e n t o f A r t i c l e 3 1 ( a )

3.3.3. A m e n d m e n t o f A r t i c l e 3 1 ( 3 )
The amendment to Article 95 of Regulation (EEC)
No 574/72 also provides for lump-sum repayment to the
state of residence of family members, if this is not the
state of residence of the pensioner. If family members This stipulates that when family members are staying in
are staying in another state, reimbursement of the another Member State, the formalities which formerly
effective cost of benefits in kind will in future be made were the responsibility of the institution of the pen-
by their state of residence, rather than (as at present) by sioner’s place of residence will now be conducted by the
the state of residence of the pensioner. institution of the family members’ place of residence.
C 73/44 EN Official Journal of the European Communities 9.3.98

3.3.4. A m e n d m e n t o f A r t i c l e 9 3 ( 1 ) a n d 3.3.7. A m e n d m e n t o f A n n e x 9
(2)
Certain sections are amended, mainly in order to
Following other amendments, this provides for deletion add references to bilateral agreements that have been
of the references to Article 29(1) of Regulation (EEC) concluded in the interim.
No 1408/71.
3.3.8. A m e n d m e n t o f A n n e x 1 0
3.3.5. A m e n d m e n t o f A r t i c l e 9 5 ( 1 ) a n d
(3)(b) Here too, certain sections are amended, mainly due to
changes in the names of the institutions concerned.
Article 95 — the amendment of which triggered the
amendments being discussed here — also has to be 3.4. Article 3 — Date of entry into force of the
amended. This is because it is necessary to add a regulation
reference to Article 29(1), so that the benefits subject to
lump-sum refunds will include those enjoyed by family
members who do not reside in the state of residence of 4. Conclusions
the pensioner.
4.1. The Committee welcomes the amendments as
they constitute an essential update and facilitate
3.3.6. A m e n d m e n t of Annexes 1, 2, 3 implementation by establishing more precise rules on
and 4 related issues which could give rise to dispute. However,
the Committee asks that a clearer and more detailed
These too are formal amendments, mainly due to explanatory memorandum be provided in future, so as
changes in the names of the institutions concerned. They to make it easier to understand the purpose of each
require no special comment. provision.

Brussels, 10 December 1997.

The President
of the Economic and Social Committee
Tom JENKINS