The document summarizes recent developments in EU legislation regarding social security coordination. It discusses the change in the legal basis for coordination rules under the Lisbon Treaty, allowing for qualified majority voting. It also outlines key changes proposed in 2010 to Regulation 883/2004 and 987/2009, including provisions related to posted workers, aircrew members, working in multiple countries, and unemployment benefits for self-employed people. Administrative and judicial developments are also mentioned.

1. Latest developments at
EU level concerning
social security
coordination
trESS seminar Rome
30 May 2012
Rob Cornelissen
Magdalena Ciesielska

2. LATEST DEVELOMENTS IN EU
LEGISLATION
• 2010 Commission proposal to modify Reg
883/2004 and 987/2009
• First importance of proposal: legal basis for
changing the rules. First time that coordination
rules are changed after entry into force of Lisbon
Treaty on 1 December 2009

3. Situation before Lisbon Treaty
• Two legal bases:
• Art 42 EC for employed persons and their dependents
(family members and survivors): co-decision Council
and Parliament. Unanimity in Council required
• Art 308 EC for all other persons covered by Reg (self-
employed, students, non-active people). Council
legislator. Unanimity in Council required

4. Situation under Lisbon Treaty
• Art 48 TFEU: legal basis for employed and self-
employed persons and their dependents. Co-
decision Council and Parliament. Qualified
majority in Council (with a brake system)
• Art 21 (3) TFEU: competence for all EU citizens
not covered by Art 48 TFEU. Council is legislator.
Unanimity in Council required.

5. 2010 Commission proposal based on
Art 48 TFEU only
• Court: dual legal basis is excluded if one Treaty
provision requires ordinary legislative procedure,
whereas the other requires Council to act
unanimously. In that case: determine appropriate
legal basis in light of general scope of Treaty
• Commission: Art 48 TFEU is adequate and
sufficient legal basis

6. Why is Art 48 TFEU adequate and
sufficient legal basis?
• Overwhelming majority of EU citizens covered by
Art 48 TFEU:
• Wide meaning of "employed" and "self-employed"
• Art 48 TFEU covers also retired "employed" and "self-
employed"
• Art 48 TFEU covers also family members and
survivors of "employed" and "self-employed"
• Khalil judgment: inclusion of refugees (a "very
restricted category of persons") in scope of Reg
based on Art 51 EC valid

7. Council and Parliament agree with
Commission
• Commission proposal, based on Art 48 TFEU,
adopted on 23 May 2012 (entry into force: 20 days
after publication)
• Art 48 TFEU is adequate and sufficient legal basis
for future EU social security coordination legislation

8. Changes on content in BR
(=Basic Regulation: Reg 883)
1. Posted workers
• Minor change in Art 12 BR
• One of conditions for posting under current Art
12 BR: "that he/she is not sent to replace another
person"
• New version of Art 12: "that he/she is not sent to
replace another posted person"
• New wording reflects better purpose of provision:
to prevent successive posting of employees

9. 2. Aircrew members
• Current rules of Title II BR: no specific provisions
for specific categories of people
• New Art 11 (5) BR: "An activity as an aircrew
member performing air passenger or freight
services shall be deemed as an activity pursued in
the Member State where the home base as
defined in Annex III to Council Regulation (EEC) No
3922/91 is located"

10. Aircrew members
• Notion of "home base" for flying personnel is well
defined in existing EU law. Each aircraft has duty to
nominate a home base for each aircrew member
• Home base: place from which aircrew member
habitually carries out work in performance of
his/her contract

11. Aircrew members
• "Home base" is closely linked to actual place of
work of person concerned and the lex loci laboris
principle
• Constitutes a more suitable element for
determination of applicable legislation than
"registered office" or "place of business" of
employer

12. 3. Change of rules for working in two
or more MS
• Current Art 13 BR: if person normally works in
two or more MS for one employer, person is subject
to legislation of residence only if he/she pursues
"substantial part of activities" there.
• Current Art 13 BR: if person normally works in
two or more MS for two or more employers situated
in different MS, person is subject to MS of
residence, even when no "substantial part of
activities" there

13. Change of rules for working in two or
more MS
• Art 13 BR as amended: person normally working
in two or more MS is subject to legislation of MS of
residence only if he/she pursues "substantial part of
activities" there, regardless if person has one or
various employers

14. Change of rules for working in two or
more MS
• If no substantial activities in MS of residence:
• MS in which registered office is situated if person is
employed by one employer or by two or more employers
who have registered office in a single MS only; or
• MS in which registered office is situated outside MS
of residence if he/she is employed by two or more
employers which have registered office in two MS, one
of them is MS of residence; or
• MS of residence if he/she is employed by two or more
employers and at least two of them have registered
office in different MS other than MS of residence

15. Change of rules for working in two or
more MS: marginal activities
• Current Art 14 (5) IR: a person pursuing
"activities of marginal extent" in one MS and also
working for same employer in another MS is NOT
covered by Art 13 BR. (Idea: prevent abuse). Such
person is, for purpose of determining applicable
legislation, treated as working in one MS
• Art 14(5) and 14(5a) IR amended: same principle
applies for person pursuing main activity in one MS
for one employer and another "activity of marginal
extent" in another MS for another employer

16. Marginal activities
• No definition in Regulations of notion "marginal
activities"
• Pratical Guide on applicable legislation: activities
that are permanent but insignificant in terms of
time and economic return. As an indicator,activities
less than 5% of worker's regular working time
and/or less than 5% of overall remuneration are
marginal activities. Also nature of activities can be
indicator.
• Not always easy to implement

17. Working in two or more MS.
Clarification of notion"registered
office" or "place of business"
• New Art 14 (5a) IR (= Implementing
Regulation= Regulation 987/2009): for purpose of
application of Title II BR the notion "registered
office or place of business" refers to place where
the essential decisions of the undertaking are
adopted and where the functions of its central
administration are carried out

18. 4. Unemployment benefits for cross
border self-employed
• New Art 65a BR: solution for formerly self-
employed frontier workers who were covered in MS
of last activity, but whose MS of residence does not
have any unemployment benefit scheme for self-
employed

19. 5. Transitional provision concerning
applicable legislation
• If, as a result of the new Regulation, a person is
subject to the legislation of a MS other than the one
determined in accordance with the old rules, the old
rules continue to apply (for a maximum of 10
years) as long as relevant situation remains
unchanged, unless person concerned requests the
immediate application of the new rules

20. EEA and Switzerland
• EEA Joint Committee Decision No 76/2011
• adopted on 1 July 2011 (OJ L 262, 6.10.2011, p.
33)
• not yet entered into force (pending approval by IS
parliament) – possibly on 1 June 2012
• Regulations (EEC) Nos 1408/71 and 574/72 still
apply in relation to IS, LI and NO
• EC-CH Joint Committee Decision No 1/2012
• OJ L 103, 13.4.2012, p. 51
• Regulations (EC) Nos 883/2004 and 987/2009
apply in relation to Switzerland since 1 April 2012

21. CASE-LAW
• Opinion of the AG of 3 May 2012 in case
C- 115/11 Format
(pending before the Court)
The concept of a "person normally employed in the
territory of two and more Member States"

22. ADMINISTRATIVE COMMISSION
1. Practical Guide on applicable legislation
• Replaces the "Posting Guide" (chapter on applicable
legislation when working in two or more Member States)
• Working instrument to assist institutions, employers and
citizens in the area of determining the applicable social
security legislation
• An update is scheduled for the 2nd half of 2012
• Available on the Commission's website:
http://ec.europa.eu/social/main.jsp?catId=851&l
angId=it

23. ADMINISTRATIVE COMMISSION
2. Current discussions:
• Interpretation of the term "posted person sent to
replace another posted person" (Art 12(1) BR)
Practical examples:
• slaughter house
• Alpes resorts
• Applicable legislation in case of parental leave

24. EXTERNAL DIMENSION
Communication on the External Dimension of EU
Social Security Coordination (COM(2012)
• sets out ways in which the EU rules currently impact on
social security coordination with third countries
• describes existing components of common EU approach
to social security coordination with third countries
• calls for strengthening cooperation between Member
States to achieve a more coherent approach to social
security coordination with third countries

25. REVISION OF COORDINATION
REGULATIONS
• Scope:
- coordination of long-term care benefits (LTC)
- coordination of unemployment benefits
• Planning
- 2009-2011 Evaluation
- 2012-2013 Impact assessment
- 2014 Proposal from the Commission

26. Thank you very much for your attention!
Questions??