2010 - Nowe regulacje w zakresie koordynacji systemów zabezpieczenia społecznego
2010 - Modernised EU Social Security Coordination and Old-Age Pensions
1. Modernised EU
Social Security Coordination and
Old-Age Pensions
TRESS Seminar Ljubljana, 19th April 2010
Radek Casta, Unit E3, DG Employment, European
Commission,
DG Employment,
Social Affairs and
Equal Opportunities
2. Overview
• The Context of the Social Security Coordination Regulations
• Introduction to the Chapter Applicable Legislation
• « Hot Issues » under this Chapter
• Electronic exchange of social security information
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3. Basic Principles of
Social Security Coordination
Legal Basis Article 48 of Lisbon Treaty (Art. 42 TEC):
aim to ensure citizens do not lose social security
rights when they move
• Equality of treatment regardless of nationality
• Legislation of only one Member State applies at any
one time
• Periods of insurance acquired in different Member
States can be aggregated
• Cash Benefits have to be exported (except special non-
contributory cash benefits listed in Annex 10)
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4. Over 50 years
of Social Security Coordination
_______________________________
____________________________
_______________________
____________________
Reg 883/2004
Reg 987/2009
Consolid Reg
Reg 1408/71
Reg 574/72
Regulations 3 & 4
1959 1972 1997 2010
4
5. Two New Regulations
• Regulation 883/2004 (the Basic Regulation) ('BR'),
as amended by Reg. 988/2009
• The New Implementing Regulation 987/2009 ('IR')
• Both Regulations of equal value
• Cannot apply one without the other
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6. New Regulations: Key Themes
• Updating so rules correspond with current social
practices (eg. inclusion of paternity benefits)
• Simplification (eg. One single definition in Article 2 BR
sets out personal scope)
• Clarification - incorporation of ECJ case-law in a
range of areas (eg. Article 5 BR – Assimilation of facts)
• Improved protection of rights (eg. Article 61 BR -
principle of aggregation applies also to self-employed
persons)
• Mandatory electronic data exchange (Art. 4 IR)
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7. 2 core principles underpin
all of this:
• Institutional procedures have been strengthened
and streamlined to make the Regulations easier
and more efficient to operate;
• New emphasis on cooperation between all users of
the Regulations
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8. Core principles of modernisation (1)
Strengthened and Streamlined Institutional
Procedures
For example:
• Improved and speedier procedures for
reimbursement
of healthcare costs between Member States
(Articles 62-67 IR);
• Direct payment of exported unemployment benefit
without need for consequent reimbursement
between institutions (Article 64 BR)
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9. Core principles of modernisation (2)
Enhanced Cooperation
"Clear and more effective cooperation between
social security institutions is a key factor in allowing
the persons covered by regulation (EC) 883/2004
to access their rights as quickly as possible and
under optimum conditions“
[Preamble of the NIR, second paragraph ]
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10. Enhanced Cooperation
Overall aim: to facilitate institutional processes whilst
at the same time making citizens’ rights more effective
• Art. 76 BR invigorated through new specific provisions, for
example:
– Art. 3 IR: requirement on institutions and citizens
to provide information
• Art. 76 BR given practical effect through structured
provisions throughout the Regulations, for example:
– Article 55(4) IR – providing information to competent
institution concerning the follow-up of the unemployed
person’s situation
10
13. Legislation Applicable
Overview
1. Simplification
2. Improved protection for individuals
3. Modernisation and Clarification
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14. 1. Simplification:
Reinforcement of the general
principles
• One legislation applicable
• Lex loci laboris for active persons
• Residence for non-active persons
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15. 1. Simplification:
Reduction in the number
of specific provisions
• Similar rules are brought together in one place
• Specific cases are addressed through
the general principles
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16. 2. Improved protection for individuals
"Clear and more effective cooperation between social
security institutions is a key factor in allowing the
persons covered by regulation (EC) 883/2004 to
access their rights as quickly as possible and under
optimum conditions."
Preamble of the IR, second paragraph
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17. 2. Improved protection for individuals
76 BR:
Duty of mutual information and cooperation
for institutions and persons covered by the
regulations
2(1) IR:
"Exchanges between Member States' authorities and
institutions and persons covered by the basic
regulation shall be based on the principles of public
service, efficiency, active assistance, rapid
delivery and accessibility…"
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18. 2. Improved protection for individuals
Provisional application of legislation
and provisional granting of benefits
6(1) IR:
Divergence of views about the legislation applicable:
person provisionally subject to one legislation identified
with an order of priority
6(2) IR:
Divergence of views about which institution should provide
the benefits: institution identified with an order of priority
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19. 2. Improved protection for individuals
Dialogue and conciliation procedure
6(3) IR: Dialogue and conciliation procedure
in the event of:
• Doubts about the validity of a document or
the accuracy of the facts
• Difference of views concerning the determination
of the applicable legislation
• Difference of views about which institution should
provide the benefits in cash or in kind
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21. 3. Modernisation and clarification
On posting, the new regulations:
• Set one-time limit of maximum 24 months
• Incorporate several elements resulting
from European Court of Justice case law
and Administrative Commission decisions
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22. 3. Modernisation and clarification
Activities in 2 or more Member States
for the same employer
Introduction of a new criterion in Article 13 of BR:
• The proportion of activity exercised in
the Member State of residence has to be
substantial for the legislation of residence to apply
• Otherwise – if no substantial proportion
of activity in the Member State of residence:
refer to legislation of employer
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23. 3. Modernisation and clarification
Activitiy in other Member States then
in the MS of residence
A Legislation applicable = Member State B
Legislation applicable = Member State B
B
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24. 3. Modernisation and clarification
Activities in 2 or more Member States for
the same employer (Attention: in the future also
several employers)
A Legislation applicable = Member State A
Legislation applicable = Member State A
B
Only if substantial part of activities in the Member State of residence
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25. 3. Modernisation and clarification
Activities in 2 or more MS for 2 or more employers,
with registered offices or plase of business in
different Member States
A C
Legislation applicable = Member State A
Legislation applicable = Member State A
B
If 2 or more employers and registered offices/place of business in different member states
, Member State of residence
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26. 3. Modernisation and clarification
Activities in 2 or more Member States
for 2 or more employers, including
in the Member State of residence (Attention:
will change)
A Legislation applicable = MS of residence
Legislation applicable = MS of residence
B
(in the future: only if substantial activity in MS of residence)
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27. 3. Modernisation and clarification
Determination of residence
If two or more Member State institutions have
different views about the determination of residence,
Article 11 of IR provides a list of criteria.
In the event that no agreement is reached,
the person's intention is decisive.
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28. 3. Modernisation and clarification
Revision of Decisions and Recommendations of
the Administrative Commission
Revised by the Administrative Commission:
• Decision 181 (new Decision A2)
• Posting Guide
Repealed by the Administrative Commission:
• Recommendation 16 on conclusion of
agreements pursuant to article 17 of 1408
• Decision 89 on persons employed by
diplomatic missions and consular posts
• Decision 126 on Article 14(1)a, 14a(1)a & 14(b) 1 & 2
• Decision 148 on form E101
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29. 3. Modernisation and clarification
Transitional provisions
What if new provisions imply
a change of the legislation applicable?
Article 87(8) of BR provides for transitional
provisions in this case.
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30. Transitional provisions
Article 87(7) 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 30 30
31. 3. Modernisation and clarification
Portable documents
A document for individuals
– indicating which legislation applies in their case –
will be needed:
Portable Document A1 will replace E-Form 101
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32. « Hot issues » = Issues under
Discussion
Overview
• Highly Mobile Persons
• International Transport
• Concept of Residence
• Posting Guide
• Transitional Provisions
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35. EESSI Implementation:
How will it work?
MAY DEC. MAY
2010 2010 2011 2012
EESSI FULLY OP
PAPER
E-FORM
PAPER
SED'S
________ ________ ________ ……..…... ……….....
NATIONAL
APPL. AS
E-FORMS
__ ________ ________ ________ ……….....
FINAL
SED'S ………….. ………….. ………….. ________ ________
SED = Structured Electronic Documents
DG Employment, Social Affairs and Equal Opportunities 35 35
36. Funding for Transnational Actions
Actions:
• Improving information and cooperation between the
institutions of Member States, and/or
• Improving citizens’ knowledge on their rights
• Subsidy up to 80%
• Call for proposal VP/2010/004 (deadline 17/05/2010)
• Published on DG EMPL website
• Publication again in 2011
DG Employment, Social Affairs and Equal Opportunities 36 36
37. Where can I find more
information?
• Our Website
• Updated Small Guide
• Explanatory Notes
• TrESS e-learning tool and European Reports
• Updated and extended posting guide (not yet
available)
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Editor's Notes
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, in case of family benefits, which legislation is applicable by priority right (article 60(4)) 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 canno on its own decide to refer a disagreement to the AC Conciliation Board will be set up by AC.
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 implementation - as regards the exchange of information between institutions, there is a transitional period of 24 months, within which the Member States may prepare themselves for the electronic exchange of social security information. This period will begin when the new Regulations enter into force and thus will end on 30 April 2012. Decision on transitional period for EESSI (Decision E1) Para 1 of Decision E1: “Guiding principle shall be good cooperation between institutions, pragmatism and flexibility.” Safeguarding of citizen’s rights No « Big Bang » Phasing in sector-by-sector (as becoming EESSI-enabled via Access Point(s)) Member State may also choose to join EESSI only when all sectors are enabled Principle of no “mix and match” Exchange between Member States during TP: either inside or outside of EESSI No « Mix and Match »: only EESSI enabled sectors can exchange information via EESSI Without prejudice to bilateral arrangements (e.g. joint testing, training, etc.)
Dissemination of information is one of the most important challenges for the success of modernised coordination. The wider public, but also the national or regional administrations applying the EU coordination rules have to receive the necessary information for their correct national implementation. First time in 2010, the European Commission has published a call for proposals to financially support transnational actions: promoting the administrative exchange of social security information among Member States, with a view to assisting them in their implementation of Regulations (EC) No 883/2004 and 987/2009; promoting transnational cooperation between institutions dealing with social security, exchanges of experience, dissemination of best practices and training initiatives developed at the national level; raising awareness and providing a better service to the public; improving citizens' knowledge on their rights, on free movement and on the coordination of social security schemes. In 2010, deadline for submitting proposals is: 17/05/2010 The call will be again published in 2011.