Changes from plenary report to adopted text

RemovedRecital 6 f (new): (6f) In its resolution of 15 March 2017 on obstacles to EU citizens’ freedom to move and work in the internal market, the European Parliament called for “resolute effective steps towards a coordinated system of aggregated social contributions and benefits for every individual across the EU, such as a social security card aimed at facilitating the traceability of social security contributions and entitlements”.

Added(8) ▌In order to improve the opportunities for unemployed persons moving to another Member State to look for work and their chances for reintegration into the labour market and to address skills mismatches across borders, Member States should be able to decide to exercise the possibility to extend the period of export of unemployment benefits until the end of the person's entitlement to benefits.

RemovedRecital 6 g (new): (6g) Where, owing to a mismatch between social security systems, a group of persons working in a Member State other than their Member State of residence are, as a result of the provisions of Articles 45 to 48 TFEU, placed at a disadvantage in comparison with those who have not availed themselves of freedom of movement for workers, in so far as they are, for a certain period, given a significantly lower level of protection than citizens of the Member State of residence, and where the matter cannot be resolved under the coordination rules, the Member State of residence of those citizens and their families should, in agreement with the Member States concerned, find a way of remedying those disadvantages.

Added(9) Unemployed persons who during their most recent activity resided in a Member State other than the competent Member State and who continue to reside in that other Member State or return there should receive benefits in accordance with the legislation of the competent Member State, provided that they have, in the Member State of their most recent activity, completed uninterrupted periods of insurance, employment or self-employment of at least 22 weeks (‘affiliation period’). Only uninterrupted periods of insurance, employment or self-employment completed under the legislation of the competent Member State should be taken into account for the purpose of calculating the affiliation period. Subject to completion of the affiliation period, it is for the competent Member State to assess whether the person meets the conditions for entitlement to unemployment benefits laid down in its national legislation, as if the person were residing in that Member State. The person should comply with the obligations laid down in the applicable legislation of the competent Member State. If the person decides to make him or herself available to the employment services of another Member State in order to seek work there, he or she should comply with the conditions laid down in the legislation of, and be subject to the control procedure organised in, that other Member State. The institution in the Member State to which the unemployed person has gone should provide the competent Member State, on a monthly basis, with relevant information concerning the follow-up to the unemployed person’s situation, in particular whether he or she is still registered with the employment services and is complying with organised checking, and activation or job placement procedures.

RemovedRecital 7: (7) In order to ensure clarity regarding the terminology in EU law, the term “posting” should only be used for the posting of workers within the meaning of Directive 96/71/EC of the European Parliament and of the Council of 16 December 1996 concerning the posting of workers in the framework of the provision of services34. Regulations (EC) No 883/2004 and (EC) No 987/2009 should refer to workers in a posting situation, including those falling within the scope of Directive 96/71/EC, as “sent” rather than “posted”. In addition, to achieve consistency in treatment between employed and self-employed persons it is necessary that the special rules for the determination of applicable legislation in the cases of workers who are temporarily sent to another Member State should apply consistently to both employed and self-employed persons.

Added(10) Within the framework of the implementation of Regulations (EC) No 883/2004 and (EC) No 987/2009, and in accordance with the duty of mutual information and cooperation, Member States’ institutions should, inter alia, exchange data necessary to detect changes in circumstances relevant for the rights and obligations of the persons concerned under Regulation (EC) No 883/2004. Member States could decide to make further use of electronic means to enhance the fulfilment of the duty of mutual information and cooperation.

RemovedRecital 8: (8) In the area of unemployment benefits, the rules on the aggregation of periods of insurance should be applied uniformly by all Member States. With the exception of cross-border workers referred to in Article 65(2), the rules on the aggregation of periods for the purpose of conferring entitlement to unemployment benefits should be subject to the condition that an insured person has most recently completed at least one day of insurance in that Member State.

Added(11) The labour market in Luxembourg is characterised by a number of specific features. Frontier workers make up a very significant proportion of the total working population in Luxembourg, which greatly exceeds the proportion of frontier workers in the working population of other Member States. The introduction of the new rules relating to frontier and cross-border workers is expected to place a very high administrative burden on the Luxembourg public employment authority, due to a significant increase in the number of frontier workers for whom it would become the competent institution. It is therefore appropriate to grant Luxembourg an additional phasing-in period, during which Articles 65 and 86 of Regulation (EC) No 883/2004 and Articles 56 and 70 of, and Annex 5 to, Regulation (EC) No 987/2009, in the version in force before … [date of entry into force of the amending Regulation], continue to apply, in order to allow the time required to take all necessary preparatory steps for a smooth transition from the current regulatory framework to the new rules and to adjust the social security system. During that phasing-in period, Article 56a of Regulation (EC) No 987/2009, which is introduced by this Regulation, should not apply to Luxembourg.

RemovedRecital 9: (9) Following the recommendations in the EU Citizenship Report 201335, there is a need to extend the minimum duration of export of unemployment benefits from three to six months in order to promote mobility and improve the opportunities for unemployed persons moving to another Member State to look for work and their chances to retrain and for reintegration into the labour market and to address skills mismatches across borders.

Added(12) In light of the judgment of the Court of Justice of the European Union in Case C-347/12, Wiering, for the purpose of the calculation of the differential supplement, there are two categories of family benefits of the same kind, namely, family benefits in cash that are primarily intended to replace income that is not earned due to child-raising periods, and all other family benefits ▌.

RemovedRecital 10: (10) There is a need to ensure greater parity of treatment for frontier and cross-border workers by giving them the choice between receiving unemployment benefits from the Member State of last activity or from their Member State of residence, in order to enhance the probability of their finding employment in the Member State where their chances of doing so are the highest.

Added(13) Family benefits in cash that are primarily intended to replace income not earned, in whole or in part, or income that the person cannot earn due to child-raising periods are designed to meet the individual or personal needs of the parent subject to the legislation of the competent Member State and are therefore distinguishable from other family benefits as they are intended to compensate a parent for loss of income or salary during time spent raising a child rather than to solely meet general family expenses.

RemovedRecital 10 a (new): (10a) It is also important to strengthen cooperation between national competent authorities and to clarify the regulatory framework applicable in order to ensure that the Member State of last activity, the Member States of previous activities and the Member State of residence do not each declare themselves not to be competent to pay benefits, to the detriment of insured persons. Communication between the competent authority of the Member State of last activity and the job seeker should be conducted in the job seeker’s language. It is also necessary that cross-border job seekers also have the possibility to make themselves available to a cross-border employment service, providing that such a service exists in the geographic area corresponding to the area of their job research.

Added(14) In order to enable timely amendments to ▌ Regulations (EC) No 883/2004 and (EC) No 987/2009 to incorporate developments at the national level, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of amending the Annexes to ▌ Regulation (EC) No 883/2004 and to Regulation(EC) No 987/2009. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement on Better Law-Making of 13 April 2016. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and Council receive all documents at the same time as Member States' experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts.

RemovedRecital 10 b (new): (10b) While coordination rules cannot prevent mobile citizens from having a lower level of protection than non-mobile citizens, Member States are encouraged to find bilateral solutions in accordance with Article 16 of Regulation (EC) No 883/2004 as amended by this Regulation.

Added(15) With a view to supporting Member States in their efforts to combat fraud and error in the application of the coordination rules, it is necessary to establish a further legal basis for the processing of the personal data of persons to whom Regulations (EC) No 883/2004 and (EC) No 987/2009 apply, in accordance with Regulation (EU) 2016/679 of the European Parliament and of the Council. This would enable a Member State to ▌ compare data held by its competent institutions against those held by another Member State, in order to identify errors or inconsistencies that require further investigation.

RemovedRecital 10 c (new): (10c) Member States should be able to provide for the introduction of differential supplements to bridge the gap between unemployment benefits paid by the Member State of last activity and the Member State of residence.

Added(16) With a view to expediting the procedure for the verification and withdrawal of documents in cases of fraud or error, it is necessary to strengthen the collaboration and the exchange of information between the issuing institution and the institution requesting a withdrawal. Where there is doubt about the validity of a document or about the correctness of supporting evidence ▌ , it is in the interest of the Member States and the persons concerned that the institutions concerned reach an agreement within a reasonable period of time.

RemovedRecital 10 d (new): (10d) It is necessary to develop cross-border placement services in order to support applicants in their search for new employment that are as close as possible to the realities of border areas.

Added(17) There should be a detailed procedure for cooperation in the case of doubt as to the validity of documents concerning the social security legislation applicable to the holder of those documents. It is also necessary to lay down further rules on retroactivity where a document is withdrawn or rectified. This includes situations in which the Member States concerned should consider concluding an agreement on the basis of Article 16 of Regulation (EC) No 883/2004 for part or all of the periods covered by the document.

RemovedRecital 11: (11) Family benefits in cash which are primarily intended to replace or grant additional, income that is not earned, whether in part of in full, or that the person cannot earn, due to child-raising are designed to meet the individual and personal needs of the parent subject to the legislation of the competent Member State and therefore are distinguishable from other family benefits as they are intended to compensate a parent for loss of income or salary during time spent raising a child rather than solely meeting general family expenses.

Added(18) To ensure the effective and efficient operation of the coordination rules, it is necessary to clarify the rules for determining the legislation applicable to employees who pursue their economic activity in two or more Member States, in order to provide a greater parity with the conditions that apply to persons who are ▌ sent to pursue an economic activity in a single Member State. ▌

RemovedRecital 11 a (new): (11a) There is a need to ensure that the competent authorities determine habitual residence for the purpose of establishing social security benefits within a reasonable time-limit.

Added(19) The link with the social security system of the Member State of origin of employed persons sent to another Member State should be reinforced by providing for a minimum period of prior affiliation.

Change 5

ChangedRecital(20) 12:Implementing (12)powers Inshould be conferred on the Commission in order to enableensure timelyuniform updatesconditions for the implementation of thisArticles Regulation12 inand line13 withof developmentsRegulation at(EC) theNo national883/2004 level,and of the Annexesrules toon thisrecovery Regulationprovided andfor toin Regulation (EC) No 987/2009987/2009. Those powers should be amendedexercised periodically.in /accordance (deleted)with Regulation (EU) No 182/2011 of the European Parliament and of the Council.

Change 6

RemovedRecital 13: (13) With a view to supporting Member States in their efforts to combat fraud and error in the application of the coordination rules, it is necessary to facilitate the processing of personal data about persons to whom Regulations (EC) No 883/2004 and (EC) No 987/2009 apply, while complying fully, without exception, with the Union acquis on the protection of personal data, particularly Regulation (EU) 2016/679 of the European Parliament and of the Council1a. This would enable a Member State to periodically compare data held by its competent institutions against that held by another Member State in order to identify errors or inconsistencies that require further investigation. / 1a Regulation (EU) 679/2016 of the European Parliament and the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation) (OJ L119, 4.5.2016, p. 1).

Added(21) If a Member State is unable to notify the annual average cost per person in each age group for a reference year within the required deadline, the Member State should be able to submit claims for that year based on the annual average costs for the immediately preceding year published in the Official Journal of the European Union. The reimbursement of the expenditure on benefits in kind on the basis of fixed amounts should be as close as possible to the actual expenditure. A derogation from the notification obligation should be subject to the authorisation of the Administrative Commission and should not be granted in two consecutive years.

RemovedRecital 16: (16) To ensure the effective and efficient operation of the coordination rules it is necessary to clarify the rules for determining applicable legislation for employees who pursue their economic activity in two or more Member States in order to provide a greater parity with the conditions that apply to persons who are sent to pursue economic activity in a single Member State. Moreover, the rules providing for the continuation of the applicable legislation should only apply to persons who had a prior link to the social security system of the Member State of origin.

Added(22) ▌The offsetting procedure that applies in situations where the legislation of a Member State was applied provisionally in accordance with Article 6 of Regulation (EC) No 987/2009 should be extended to cases where an institution was not competent to grant benefits or receive contributions. In addition, in that context, it is necessary to disapply divergent limitation provisions in national law to ensure that a retroactive settlement between the institutions is not impeded by any incompatible time-limits laid down in national legislation while at the same time establishing a uniform limitation period of three years, counting backwards from the commencement of the dialogue procedure referred to under Article 5(3) and (4) and Article 6(3) of that Regulation to ensure that the procedure for resolving disputes is not frustrated.

RemovedRecital 16 a (new): (16a) In order to strengthen the link between the substantial activity of the undertaking and the legislation applicable to the person seconded by that undertaking to another Member State on a temporary basis, it is important to stress that the substantial activity must be characterised, inter alia, by a share of more than 25 % of the annual turnover in the Member State from which the person is seconded.

Added(23) Effective recovery is a means of preventing and tackling fraud and abuse and ensuring the smooth functioning of social security schemes. The recovery procedures provided for in Chapter III of Title IV of Regulation (EC) No 987/2009 are based on the procedures and rules provided for in Council Directive 2008/55/EC ▌ . That Directive has been superseded by Council Directive 2010/24/EU, which introduced a uniform instrument to be used for enforcement measures as well as a standard form for the notification of instruments and measures relating to claims. In a review by the Administrative Commission, most Member States found it advantageous to use a uniform instrument for enforcement similar to that provided for by Directive 2010/24/EU. It is therefore necessary that the rules for mutual assistance in recovery of social security claims reflect the new measures in Directive 2010/24/EU, in order to ensure more effective recovery and a smooth functioning of the coordination rules.

RemovedRecital 17: (17) In order to supplement this Regulation by establishing a standard procedure for the determination of situations in which the documents are to be issued and those in which the document are to be withdrawn because the competent institution of the Member State of employment contests its accuracy or validity, the power to adopt acts in accordance with Article 290 of the Treaty on the Functioning of the European Union should be delegated to the Commission in respect of the implementation of Articles 12 and 13 of Regulation (EC) No 883/2004 as amended by this Regulation. It is of particular importance that the Commission carry out appropriate consultations during its preparatory work, including at expert level, and that those consultations be conducted in accordance with the principles laid down in the Interinstitutional Agreement of 13 April 2016 on Better Law-Making37. In particular, to ensure equal participation in the preparation of delegated acts, the European Parliament and the Council receive all documents at the same time as Member States’ experts, and their experts systematically have access to meetings of Commission expert groups dealing with the preparation of delegated acts. / 37 OJ L 123, 12.5.2016, p. 1.

Added(24) To take account of legal changes in certain Member States and in the United Kingdom and to guarantee legal certainty for stakeholders, the Annexes to Regulation (EC) No 883/2004 and to Regulation(EC) No 987/2009 should be amended.

Change 7

ChangedRecital 21 a (new): (21a)(25) The European Data Protection Supervisor has beenwas consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 andof hasthe adoptedEuropean anParliament opinion1a.and /of 1a.the OJCouncil Cand 92,delivered 26.4.2007,an p.opinion 15.on 8 May 2017.

Change 8

RemovedRegulation (EC) No 883/2004

Added(26) While a number of provisions of this Regulation can be applied immediately because they do not require implementation, it is appropriate to provide for a later date of application for certain provisions of this Regulation to allow Member States sufficient time for their implementation,

RemovedArticle 1 – paragraph 1 – point 1, Recital 2 – second sentence: deleted / (deleted)

AddedHAVE ADOPTED THIS REGULATION:

RemovedRegulation (EC) No 883/2004

AddedArticle 1

RemovedArticle 1 – paragraph 1 – point 2, Recital 5: (2) Recital 5 is replaced by the following: / “(5) It is necessary, within the framework of such coordination, to guarantee within the Union equality of treatment under the different national legislation for the persons concerned and to support citizens in the exercise of their Treaty rights to free movement, not least by ensuring clarity in terms of the Member State responsible for ensuring their access to, and coverage by, the relevant social security system.” / (deleted)

AddedRegulation (EC) No 883/2004 is amended as follows:

RemovedRecital (5) emphasises the obligation to ensure equality of treatment which is contained in Article 4 of Regulation 883/2004. It is not appropriate at this point in time to add limitations to this principle given that the case law in this area is still evolving. This suggested amendment also reflects the position of the Council (ST 13139/2017) that recital (5) of Regulation 883/2004 should not be amended. Moreover, there are circumstances in which the principle of equality of treatment applies without Directive 2004/38 also applying, for example as regards the exportability of benefits where a citizen is not residing in the competent Member State. All references to economically inactive citizen, social security benefits and Directive 2004/38 should therefore be deleted.

Added(1) the following recital is inserted:

RemovedRegulation (EC) No 883/2004

Added‘(2a) Articles 45 and 48 of the Treaty of the Functioning of the European Union (TFEU) ensure free movement of workers entailing the abolition of any discrimination based on nationality and provide for the adoption of the necessary measures in the field of social security to secure that freedom. In addition, under Article 21 TFEU, every Union citizen has the right to move and reside freely within the territory of the Member States, subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect.’;

RemovedArticle 1 – paragraph 1 – point 3, Recital 5a: deleted

Added(2) recital 5 is replaced by the following:

RemovedRegulation (EC) No 883/2004

Added‘(5) It is necessary, within the framework of such coordination, to guarantee within the Union equality of treatment under the different national legislations for the persons concerned.

RemovedArticle 1 – paragraph 1 – point 3, Recital 5b: (5b) Member States should ensure that economically inactive EU mobile citizens are not prevented from satisfying the condition of having comprehensive sickness insurance cover in the host Member State, as laid down in Directive 2004/38/EC. This should at least entail allowing such citizens to contribute in a proportionate manner to a scheme for sickness coverage or otherwise to fulfil the relevant criteria for access to sickness insurance in the Member State in which they habitually reside.

Added(5a) In applying the principle of equal treatment provided for in this Regulation, the case-law of the Court of Justice is to be respected. The Court of Justice has interpreted that principle and the relationship between this Regulation and, inter alia, Directive 2004/38/EC, in its judgments in Cases C-140/12, Brey*, C-333/13, Dano**, C-67/14 Alimanovic***, C-299/14, Garcia-Nieto**** and C-308/14, Commission v the United Kingdom*****.

RemovedComprehensive sickness insurance is a fundamental right. Inactive mobile citizens should have the possibility to obtain sickness insurance also in their Member State of residence. Member States should be able to rely on binding guidelines when making their sickness insurance system accessible for inactive mobile EU citizens.

Added(5b) Member States should ensure that mobile, economically inactive Union citizens are not prevented from satisfying the condition of having comprehensive sickness insurance cover in the host Member State, as laid down in Directive 2004/38/EC. They should be allowed, in accordance with national law and practice, to contribute in a proportionate manner to a scheme for comprehensive sickness insurance cover if they are not otherwise able to fulfil the relevant criteria for access to comprehensive sickness insurance cover in the Member State in which they habitually reside.

RemovedRegulation (EC) No 883/2004

Added_________

RemovedArticle 1 – paragraph 1 – point 3, Recital 5c: deleted

Added* Judgment of the Court of Justice of 19 September 2013, Brey, C-140/12, ECLI:EU:C:2013:565.

RemovedRegulation (EC) No 883/2004

Added** Judgment of the Court of Justice of 8 November 2014, Dano, C-333/13, ECLI:EU:C:2014:2358.