Changes from report parliamentary committee draft to plenary report

AddedRecital 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.

AddedRecital 12: (12) In order to enable timely updates of this Regulation in line with developments at the national level, the Annexes to this Regulation and to Regulation (EC) No 987/2009 should be amended periodically. / (deleted)

AddedRecital 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).

AddedRecital 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.

AddedRecital 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.

AddedRecital 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.

AddedRecital 21 a (new): (21a) The European Data Protection Supervisor has been consulted in accordance with Article 28(2) of Regulation (EC) No 45/2001 and has adopted an opinion1a. / 1a. OJ C 92, 26.4.2007, p. 15.

Regulation (EC) No 883/2004

Change 3

RemovedArticle 1 – paragraph 1 – point 3, Recital 5c: (5c) Notwithstanding the limitations on the right to equal treatment for economically inactive persons and persons with the right of freedom of movement for the purposes of seeking employment, that arise from the Directive 2004/38/EC or otherwise by virtue of Union law, nothing within this Regulation should restrict the fundamental rights recognised in the Charter of Fundamental Rights of the European Union, notably the right to human dignity (Article 1), the right to life (Article 2), the entitlement to social security benefits and social services (Article 34) and the right to healthcare (Article 35).

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

Regulation (EC) No 883/2004

Change 4

RemovedArticle 1 – paragraph 1 – point 8, Recital 47: (47) This Regulation respects fundamental rights and observes the principles recognised in the Charter of Fundamental Rights of the European Union, notably the respect for private and family life (Article 7), the protection of personal data (Article 8), the freedom to choose an occupation and right to engage in work (Article 15), the right to property (Article 17), the right to non-discrimination (Article 21), the rights of the child (Article 24), the rights of the elderly (Article 25), integration of persons with disabilities (Article 26), the right to family and professional life (Article 33); the right to social security and social assistance (Article 34), the right to health care (Article 35) and the right to freedom of movement and residence (Article 45); and has to be implemented in accordance with those rights and principles.

AddedArticle 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)

AddedRecital (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.

Regulation (EC) No 883/2004

Change 5

RemovedArticle 1 – paragraph 1 – point 8, Recital 48 a (new): (48a) Nothing within this Regulation limits the independent rights and obligations recognised in the European Social Charter, in particular the right to social security (Article 12), the right to social and medical assistance (Article 13), the right of migrant workers and their families to protection and assistance (Article 19), and the right to protection against poverty and social exclusion (Article 30). This Regulation should be implemented in accordance with those rights and obligations.

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

Regulation (EC) No 883/2004

Change 6

RemovedArticle 1 – paragraph 1 – point 11, Article 4 – paragraph 2: deleted / (deleted)

AddedArticle 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.

AddedComprehensive 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.

Regulation (EC) No 883/2004

Change 7

RemovedArticle 1 – paragraph 1 – point 13, Article 12 – paragraph 1: 1. A person who pursues an activity as an employed person in a Member State on behalf of an employer which normally carries out its activities there and who is posted 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 services46 shall continue to be subject to the legislation of the first Member State, provided that: / (a) the anticipated or actual duration of such work does not exceed [XXX] months and that the person is not posted to replace another employed or self-employed person previously posted within the meaning of this Article; and / (b) for a period of at least six months immediately preceding the start of the activity as an employed person, the person concerned is already subject to the legislation of the Member State in which his or her employer is established.

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

RemovedTo ensure legal clarity and consistency of the legislative framework it will be necessary to align the provisions on the anticipated or actual duration of the posting in the coordination regulations and Directive 96/71/EC.

Regulation (EC) No 883/2004

Change 8

RemovedArticle 1 – paragraph 1 – point 13, Article 12 – paragraph 2: 2. A person who normally pursues an activity as a self-employed person in a Member State who goes to pursue a similar activity in another Member State shall continue to be subject to the legislation of the first Member State, provided that: / (a) the anticipated or actual duration of such activity does not exceed six months and that the person is not replacing another posted employed or self-employed person, and / (b) for a period of at least six months immediately preceding the start of the activity, the person concerned has already been subject to the legislation of the Member State in which he or she normally pursues his or her activity.

AddedArticle 1 – paragraph 1 – point 4 a (new), Recital 20: 4a. Recital 20 is replaced by the following: / “(20) In the field of sickness, long-term care, maternity and equivalent paternity benefits, insured persons, as well as the members of their families, living or staying in a Member State other than the competent Member State, should be afforded protection.”

Regulation (EC) No 883/2004

Change 9

RemovedArticle 1 – paragraph 1 – point 13, Article 12 – paragraph 2 a (new): 2a. Where a person has been posted in accordance with paragraph 1 or has pursued a self-employed activity in another Member State in accordance with paragraph 2 for at least [XX] months in total, either continuously or with interruptions of not more than three months, no new period under paragraph 1 or paragraph 2 may commence for the same employed or self-employed person and the same Member State until at least six months after the end of the previous period.

AddedArticle 1 – paragraph 1 – point 5, Recital 24: "(24) In accordance with the case-law of the Court of Justice of the European Union, long-term care benefits for insured persons and members of their families should, in principle, continue to be coordinated following the rules applicable to sickness benefits. However, those rules should take into account the specific nature of long-term care benefits. It is also necessary to provide for specific provisions in case of overlapping of long-term care benefits in kind and in cash."

Regulation (EC) No 883/2004

Change 10

AddedArticle 1 – paragraph 1 – point 6, Recital 35a: "(35a) Family benefits in cash which are primarily intended to replace or grant additional income not earned, whether in part or in full, or income that the person cannot earn, due to child-raising, can be distinguished from other family benefits intended to meet family expenses. As such benefits could be considered to be individual rights which are personal to the parent subject to the legislation of the competent Member State, it should be possible to reserve them exclusively to the parent concerned. Such individual benefits should be listed in Part I of Annex XIII to this Regulation. The Member State with secondary competence may elect that the rules of priority in the case of overlapping of rights to family benefits under the legislation of the competent Member State and under the legislation of the Member State of residence of members of the family should not apply to such benefits. Where a Member State chooses to disapply the priority rules it must do so consistently in respect of all entitled persons in an analogous situation and provided that the benefits concerned are listed in Part II of Annex XIII."

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 7, Recital 39a: “(39a) The relevant EU data protection acquis, in particular Regulation (EU) 679/2016 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)42 applies fully and without exception to the processing of personal data affected by this Regulation.”

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 46: deleted / (deleted)

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 47: (47) This Regulation respects fundamental rights and observes the principles recognised by the Charter of Fundamental Rights of the European Union, notably the right to human dignity (Article 1), the right to life (Article 2), the respect for private and family life (Article 7), the protection of personal data (Article 8), the freedom to choose an occupation and right to engage in work (Article 15), the right to property (Article 17), the right to non-discrimination (Article 21), equality between men and women (Article 23), the rights of the child (Article 24), the rights of the elderly (Article 25), integration of persons with disabilities (Article 26), the right to family and professional life (Article 33); the right to social security and social assistance (Article 34), the right to health care (Article 35) and the right to freedom of movement and residence (Article 45), as well as the Council of Europe Convention for the Protection of Human Rights and Fundamental Freedoms, and has to be implemented in accordance with those rights and principles.

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 48 a (new): (48a) Nothing in this Regulation limits the independent rights and obligations recognised in the Council of Europe Social Charter, in particular the right to social security (Article 12), the right to social and medical assistance (Article 13), the right of migrant workers and their families to protection and assistance (Article 19), and the right to protection against poverty and social exclusion (Article 30). This Regulation should be implemented by the Member States concerned in accordance with those rights and obligations.

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 48 b (new): (48b) The new provisions on unemployment benefit for cross-border workers could in some cases worsen the conditions for their return to the labour market. It is essential, therefore, to enhance administrative cooperation between the competent authorities responsible for supporting cross-border workers and for the regulatory framework to facilitate, for example, the steps to be completed in the Member State of residence, by clarifying the competence of the public employment service responsible for providing support to them, and for exchanges between the competent institution of the Member State of last activity and the job seeker to be conducted in the language of the latter.

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 48 c (new): (48c) Member States may 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.

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 48 d (new): (48d) Nothing in this Regulation limits the independent rights and obligations recognised in the Council of Europe Convention on Social and Medical Assistance in the Member States concerned.

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 8, Recital 48 e (new): (48e) It is also important to strengthen cooperation between the competent authorities and to clarify the regulatory framework applicable in order to ensure that Member States – of last activity, of previous activity and/or of residence – do not declare themselves not to be competent to pay unemployment benefits, to the detriment of insured persons.

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 9 – point a, Article 1 – point c: deleted

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 9 – point a a (new), Article 1 – point c: (aa) Point (c) is replaced by the following: / “(c) ‘insured person’, in relation to the social security branches covered by Title III, Chapters 1 and 3, means any person satisfying the conditions required under the legislation of the Member State competent under Title II to have the right to benefits, for at least one of the risks covered by the Chapter which is to be applied, taking into account the provisions of this Regulation.”

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 9 – point b, Article 1 – point i – point 1 – point ii: deleted

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 9 – point b a (new), Article 1 – point i – point 1 – point ii: (ba) In point (i)(1), point (ii) is replaced by the following: / (ii) with regard to benefits in kind pursuant to Title III, Chapter 1 on sickness, long-term care, maternity and equivalent paternity benefits, any person defined or recognised as a member of the family or designated as a member of the household by the legislation of the Member State in which he/she resides;

AddedRegulation (EC) No 883/2004

AddedArticle 1 – paragraph 1 – point 9 – point c, Article 1 – point va – point i: deleted

AddedRegulation (EC) No 883/2004