Principle of one applicable legislation strengthened Previously exceptions under Article 14c(Annex VII) and 14f of Regulation 1408 Strengthening of “lex loci laboris” principle Economically active people subject to legislation of MS of work Activity as employed or self-employed person Art. 1(a) and (b) BR: any activity or equivalent situation treated as such for the purpose of social security legislation of the MS in which such activity or equivalent situation exists Exceptions: Civil servants: legislation of MS to which administration which employs him is subject Non-active people (e.g. retired): subject to legislation of MS of residence Unemployed persons frontier worker (who receives unemployment benefit in that state): subject to legislation of MS of residence
Exception to lex loci laboris prinicple – needs to be strictly intrepreted New document certifying the posting – PD A1.
Portable Documents: [note: you can mention more in detail PDs relevant to the topic of the seminar] PD = A document that a social security office issues to a citizen; some PDs inform the holder, other grant them rights or allow them to start necessary procedures The document may be for the eyes of the holder only or may need to be shown or handed to an official They contain private information about social security rights At the meeting of 17-18th March, the Administrative Commission adopted the portable documents A1, S1, S2, S3, DA 1, U2 and U3. The Commission is currently in the process of preparing definitive formats for the Portable documents, which will then be translated and sent to the Member States for linguistic review. Although no new E-forms should be issued from May 2010, some offices may continue to do so exceptionally for practical reasons until April 2012 at the latests; the EHIC will continue to be issued in the pre-2010 format even after 2010; some E-forms may continue to be valid until they expire or are replaced (their validity may go well beyond 2012)
A new safety net , where there is a disagreement between institutions or authorities of two or more MS about: Validity of a document or the accuracy of facts on which the document is based (article 5 IR) The determination of applicable legislation (Article 6(1) IR) Or about which institution should provide benefits in cash or in kind Details of the procedure are set in Decision A1 of the Administrative Commission The procedure provides two distinct stages: Compulsory dialogue Optional conciliation – if the dialogue is unsuccessful, the matter may be referred by the competent MS to the AC (optional); an institution cannot on its own decide to refer a disagreement to the AC Conciliation Board will be set up by AC.
The dialogue and conciliation procedure could be time-consuming. What happens meanwhile for the citizen in order protect rights? The new regulations also introduce the possibility for a citizen to have a temporary registration and access to benefits when member states’ views diverge over which legislation should be applied. This guarantees that no one will be left without social security coverage while waiting for a member state’s decision Citizen is made provisionally subject to legislation of one of the MS involved. Order of priiorty: MS of actual work MS if residence, if activity is partly pursued there MS whose legislation was first applied for. If there is a difference of views as to which of the MS is responsible for paying benefits to the person concerned, a person will be entitled, on a provisional basis To benefits provided for by the legislation of the place where that person resides or If this person does not reside in the territory of one of the MS concerned To the benefits provided for by the legislation applied by the institution where the request was first submitted.
One of the main innovations introduced by the new Regulations is the obligation for Member States to exchange social security information only by electronic means (article 4 IR) . In order to reach the objective set by the Regulations, an integrated system providing a common secure framework is to be set up. This new system is called the EESSI system (Electronic Exchange of Social Security Information). Currently 31 countries participate in the information exchange (EU27 + Iceland, Norway, Liechtenstein and Switzerland). EESSI is a messaging system that will allow national social security institutions to exchange social security information electrocally in a secure manner . It replaces the current paper E-forms. Legal framework: Article 78 of Regulation 883/2004 Article 4(2) of Implementing Regulation (IR): “ The transmission of data between the institutions or the liaison bodies shall be carried out by electronic means either directly or indirectly through the access points under a common secure framework that can guarantee the confidentiality and protection of exchanges of data.”
The EESSI system consists of : a central application (Coordination Node) to be hosted in the Commission's Data Centre an application to be deployed in the national administrations Gives effect to the principle of enhanced cooperation between the Member States This will lead to an substantial improvement of the services to the citizens, who will receive payments of social security benefits more timely and accurate. Institutions will be connected to EESSI via Access Point which will ensure transfer of the messages from the national application of the sending institution to the central application and delivery to the national application of the addressee institution. Together these applications should enable Member States' social security administrations to manage the exchange of social security information by electronic means across country boundaries. EESSI should play a major role in facilitating cooperation between institutions and to contribute to a better enforcement of the rights of the citizens and granting of benefits in a speedier way. 1st May 2010 is also the start of a two year transition period during which Member States with the support of DG EMPL will have to prepare their national applications for the this changeover to the new electronic data exchange of social security information.
EESSI Newsletter Until now the newsletter has been used as the main channel of information supplied by DG EMPL. As the Member States are a key player in this project, the newsletter will in the future provide a user space for the Member States. You can find more information on the idea for such a forum at the end of this newsletter.
2010 - Modernised EU Social Security Coordination and Applicable Legislation
Modernised EU Social Security Coordination and Applicable Legislation TRESS Seminar Bucharest, 27th April 2010Gillian More, Unit E3, DG Employment, European Commission, DG Employment, Social Affairs and Equal Opportunities
OverviewI Key Themes in the Modernised RulesII Modernised Provisions on applicable legislationIII Information Sources on the modernised rules
Over 50 yearsof Social Security Coordination _______________________________ ____________________________ _______________________ ____________________ Implementing Reg Reg 883/04 Consolid Reg EC Reg 1408/71 Implementing Reg 574/72 Regulations 3 & 41959 1972 1997 2010 Source: European Commission, DG Employment, Social Affairs and Equal Opportunities 3
Key Themes of the ModernisedRegulations• Updating so rules correspond with current social practices (eg. Provision for child-raising periods)• Simplification (eg. Personal scope – Article 2 BR)• Improved protection of rights (eg. – improved information and assistance to citizens– Articles 2 & 3(1) IR )• Clarification – incorporation of ECJ case-law in a range of areas (e.g. Article 5 BR – Assimilation of Facts)• Strengthened and Streamlined institutional procedures (e.g. electronic data exchange; administrative cooperation)
Applicable Legislation - overallapproach• Principle of one applicable legislation strengthened• Strengthening of “lex loci laboris” principle• “Lex loci domicilii” for non-active persons (Article 11(3)(e))• Direct link to personal scope of Regulation DG Employment, Social Affairs and Equal Opportunities 5
Applicable Legislation: Overviewof Main Changes1. Posting Rules2. Deletion of specific categories of persons or activities where special rules applied;3. New approach to pursuit of activities in 2 or more States4. Dialogue and Conciliation procedure plus extension of rules for provisional application of legislation
New provisions on postingof employed persons (Article 12(1) BR)• Maximum of two years - no extension• Main conditions remain applicable: – Definitions in Article 14 Implementing Regulation – New Decision A2 on posting adopted by Administrative Commission on 12 June 2009 – Revised posting guide (Part 1) New Portable Document A1 DG Employment, Social Affairs and Equal Opportunities 7
Portable documents A document for individuals Source: European Commission, DG Employment, Social Affairs and Equal Opportunities 8
Deletion of special rules forspecific categories of personsSPECIFIC PROVISIONS DELETED:• International transport workers;• Persons employed by diplomatic missions and consular postsSPECIFIC PROVISIONS RETAINED:• Mariners (Art. 11(4) BR);• Civil servants (Art. 11(3)(b))
New approach to pursuit of activities for 1employer in 2 or more MS (Art. 13(1) BR)• Legislation of MS of residence is applicable: - If the proportion of activity in that MS is substantial What is “substantial”? - look at working time and/or remuneration (Article 14(8) IR) - Less than 25% indicates that not substantial• Otherwise: legislation of MS in which registered office of employer is situated [Guidance will be inserted into Part 2 Posting Guide]
Transitional provisions (Article87(8) BR)• Legislation determined under 1408/71 continues to apply – if as a result of application of 883 person would become subject to different legislation – as long as relevant situation remains unchanged – For a maximum period of 10 years• Person can request to become subject to the legislation applicable under 883. DG Employment, Social Affairs and Equal Opportunities 11
Dialogue and conciliation procedure (Arts.5 and 6 IR) DG Employment, Social Affairs and Equal Opportunities 12
Provisional application of legislationand provisional granting of benefitsArt. 6(1) IR:Divergence of views about the legislation applicable:person provisionally subject to one legislation identifiedwith an order of priorityArt. 6(2) IR:Divergence of views about which institution should providethe benefits: institution identified with an order of priority
Information Sources on the newRegulations• Explanatory Notes on DG EMPL website• New Small Guide – publication foreseen May 2010• Information campaign for citizens 2nd half 2010• Updated Website
EESSI EESSI is a twofold activityCreation of a Identification of theEuropean Business (flows, SEDsinfrastructure to and data, institution data)exchange SEDs Source: European Commission, DG Employment, Social Affairs and Equal Opportunities 20
EESSI – Overall planning 2009-2012Development and Implementation phase of EESSIsystem currently in progress with Siemens ITSolutions and ServicesMay 2010: Directory Services operationalDecember 2010: EESSI data messaging system operationalDec 2010-April 2012: National administrations in Member States connecting to EESSI
EESSI – Overall planning 2009 - 2012 2010 2011 12 1 2 3 4 5 6 7 8 9 10 11 12 1 2 3 4Directory Preparation forServices GO LIVEMessaging Development by Siemens and testing system Flows Preparation of SEDs for upload in EESSI SEDS End of Siemens Contractual term
Paper SED - example DG Employment, Social Affairs and Equal Opportunities 24
Planning preparation of paper SEDs (I)First batch of paper SEDs• Accepted by the Administrative Commission on 14 April - family benefits (all) - unemployment benefits (majority) - sickness benefits (50%) - pensions (SED on child raising periods)• The first batch of SEDs are currently being translated and will be ready in all languages early June
Planning preparation of paper SEDs (II)Second and third batch of paper SEDs• To be accepted by the Administrative Commission in next two meetings• Second batch will contain paper SEDs in the field of recovery (50%) and pensions (7 SEDs)• Third batch will cover all remaining SEDs
Further steps in the process ofidentification of the businessAfter finalisation of the work on the paper version of the SEDs the expert groups will focus on:- Technical definition of the data fields in SEDs for use in EESSI - to be ready before upload in EESSI end of 2010- Guidance on use of flows and SEDs
Transition from 1408/71 to 883/2004- How will it work? JULY MAY DECEMBER MAY 2009 2010 2010 2012 …………………………………. …………………………………. TRANSITIONAL PERIOD TRAINING, INFORMATION PERIOD Implementing RegulationsRegulation adopted become applicable EESSI Starts to function
Decision E1 on practical arrangementsfor the transitional period for electronicdata exchange• Good cooperation, pragmatism and flexibility• E-forms, where electronically produced, may still be used• Institutions shall accept relevant information on any document issued by other institutions
EESSI newsletter DG Employment, Social Affairs and Equal Opportunities 30