Trilogue2-equaltreatment
Dieses Dokument ist Teil der Anfrage „Koordinierung der Systeme der sozialen Sicherheit“
Diese Anfrage wurde als Teil der Kampagne „Black Box EU“ gestellt.
v. 28/01/2019 Provisions in proposal related to: Equal treatment and access to social benefits by economically inactive mobile EU citizens - Plain text: text of the original Regulations (EC) No. 883/2004 and No. 987/2009; - Bold: proposals of the Commission (2016/0397 (COD)) compared to the original Regulations; - Bold underlined italic: amendments proposed by the European Parliament (PE612058v03-00EN); - Bold underlined: amendments proposed by the Council (ST 10295/18); - Some rows where none of the institutions have made amendments have been inserted for information purposes only. Technical meetings 22 and 28 January 2019, outcome: Rows 9, 13 and 17 have been identified as the key elements to resolve. Drafting suggestions have been submitted in an effort to finding a solution on these rows. Please see in the table below. Rows Commission proposal EP Amendments Council Position Comments 1. Regulation 883/2004 2. Recital 2 3. (2) The Treaty does not provide (2) The Treaty does not provide (2) The Treaty does not provide (2) The Treaty does not powers other than those of Article powers other than those of Article 308 powers other than those of provide powers other than 308 to take appropriate measures to take appropriate measures within Article 308 to take appropriate those of Article 308 to take within the field of social security the field of social security for persons measures within the field of appropriate measures within for persons other than employed other than employed persons. […] social security for persons other the field of social security for persons. Article 21 Treaty of the than employed persons. Article persons other than employed Functioning of the European AM 40 21 Treaty of the Functioning of persons. […] Union guarantees every Union the European Union citizen the right to free movement guarantees every Union citizen subject to the limitations and the right to free movement conditions laid down in the subject to the limitations and EP and CL - same position Treaties and by the measures conditions laid down in the adopted to give them effect. Treaties and by the measures 1 adopted to give them effect. 4. Recital 2a(new) 1 N.B.: The Council's mandate uses the second sentence of recital 2 as a basis for new recital 2a. 1
v. 28/01/2019 5. (2a) Articles 45 and 48 of the Treaty of the Functioning of the European Union 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 of the Treaty of the Functioning of the European Union, […] 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. 6. Recital 5 7. (5) It is necessary, within the (5) It is necessary, within the (5) It is necessary, within the framework of such coordination, to framework of such coordination, to framework of such coordination, guarantee within the Community guarantee within the Union equality to guarantee within the equality of treatment under the of treatment under the different Community Union equality of different national legislation for the national legislation for the persons treatment under the different persons concerned, subject to the concerned and to support citizens in national legislations for the conditions as regards the access the exercise of their Treaty rights to persons concerned., subject to to certain social security benefits free movement, not least by ensuring the conditions as regards the by economically inactive mobile clarity in terms of the Member State access to certain social security EU citizens in the host Member responsible for ensuring their access benefits by economically State set out in Directive to, and coverage by, the relevant inactive mobile EU citizens in 2004/38/EC of the European social security system. the host Member State set out 2
v. 28/01/2019 Parliament and of the Council of in Directive 2004/38/EC of the 29 April 2004 on the right of AM 41 European Parliament and of citizens of the Union and their the Council of 29 April 2004 on family members to move and the right of citizens of the reside freely within the territory Union and their family 2 of the Member States. members to move and reside freely within the territory of the Member States. 2 8. Recital 5-a (new) 9. (5-a) In applying the principle Proposals on the table: of equal treatment provided "(5-a) In applying the for in this Regulation, the case- principle of equal treatment law of the Court needs to be provided for in this respected. The Court has Regulation, the case-law of interpreted that principle and the Court needs to be the relationship between this respected. The Court has Regulation and Directive interpreted that principle and 2004/38/EC in its judgements the relationship between this in recent cases C-140/12 Brey, Regulation and Directive C-333/13 Dano, C-67/14 2004/38/EC, notably in its Alimanovic, C-299/14 Garcia- judgements in recent cases C- Nieto and C-308/14 140/12 Brey, C-333/13 Dano, Commission v the United C-67/14 Alimanovic, C- Kingdom. 299/14 Garcia-Nieto and C- 308/14 Commission v the United Kingdom." OR "(5-a) In applying the principle of equal treatment provided for in this Regulation, the case-law of the Court needs to be 2 OJ L 158, 30.4.2004, p. 77 3
v. 28/01/2019 respected. The Court has interpreted that principle and the relationship between this Regulation and Directive 2004/38/EC in notably its judgements in recent 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." 10. Recital 5a(new) Recital 5a(new) 11. (5a) The Court of Justice has held […] (5a) The Court of Justice has […] that Member States are entitled held that Member States are to make the access of AM 42 entitled to make the access of economically inactive citizens in economically inactive citizens the host Member State to social in the host Member State to EP and CL - same position security benefits, which do not social security benefits, which constitute social assistance within do not constitute social the meaning of Directive assistance within the meaning 2004/38/EC subject to a legal of Directive 2004/38/EC right of residence within the subject to a legal right of meaning of that Directive. The residence within the meaning verification of the legal right of of that Directive. The residence should be carried out in verification of the legal right of accordance with the requirement residence should be carried out of Directive 2004/38/EC. For in accordance with the these purposes, an economically requirement of Directive inactive citizen should be clearly 2004/38/EC. For these distinguished from a jobseeker purposes, an economically whose right of residence is inactive citizen should be conferred directly by Article 45 clearly distinguished from a of the Treaty on the Functioning jobseeker whose right of of the European Union. In order residence is conferred directly 4
v. 28/01/2019 to improve legal clarity for by Article 45 of the Treaty on citizens and institutions, a the Functioning of the codification of this case law is European Union. In order to necessary. improve legal clarity for citizens and institutions, a codification of this case law is necessary. 12. Recital 5b(new) 13. (5b) Member States should (5b) Member States should ensure (5b) Member States should Proposal on the table: ensure that economically inactive that economically inactive EU ensure that economically "(5b) Economically inactive EU mobile citizens are not mobile citizens are not prevented inactive EU mobile citizens are EU mobile citizens may be prevented from satisfying the from satisfying the condition of not prevented from satisfying allowed to contribute in a condition of having having comprehensive sickness the condition of having proportionate manner to a comprehensive sickness insurance cover in the host Member comprehensive sickness scheme for sickness coverage insurance cover in the host State, as laid down in Directive insurance cover in the host or otherwise to fulfil the Member State, as laid down in 2004/38/EC. This should at least Member State, as laid down in relevant criteria for access to Directive 2004/38/EC. This may entail allowing such citizens to Directive 2004/38/EC. This sickness insurance in the entail allowing such citizens to contribute in a proportionate may entail allowing such Member State in which they contribute in a proportionate manner to a scheme for sickness citizens to contribute in a habitually reside." manner to a scheme for sickness coverage or otherwise to fulfil the proportionate manner to a coverage in the Member State in relevant criteria for access to scheme for sickness coverage which they habitually reside. sickness insurance in the Member in the Member State in which State in which they habitually they habitually reside. reside. AM 43 14. Recital 5c(new) Recital 5c(new) 15. (5c) Notwithstanding the […] (5c) Notwithstanding the […] limitations on the right to equal limitations on the right to treatment for economically AM 44 equal treatment for inactive persons, that arise from economically inactive persons, the Directive 2004/38/EC or that arise from the Directive EP and CL - same position otherwise by virtue of Union law, 2004/38/EC or otherwise by nothing within this Regulation virtue of Union law, nothing 5
v. 28/01/2019 should restrict the fundamental within this Regulation should rights recognised in the Charter restrict the fundamental rights of Fundamental Rights of the recognised in the Charter of European Union, notably the Fundamental Rights of the right to human dignity (Article European Union, notably the 1), the right to life (Article 2) and right to human dignity (Article the right to healthcare (Article 1), the right to life (Article 2) 35). and the right to healthcare (Article 35). 16. Recital 47 (new) 17. (47) This Regulation respects (47) This Regulation respects (47) This Regulation respects Proposal on the table: fundamental rights and observes fundamental rights and observes the fundamental rights and "(47) This Regulation the principles recognised in the the principles recognised by the observes the principles respects the fundamental Charter of Fundamental Rights Charter of Fundamental Rights of recognised in by the Charter of rights and observes the of the European Union, notably the European Union, notably the Fundamental Rights of the principles recognised in by the protection of personal data right to human dignity (Article 1), European Union and the the Charter of Fundamental (Article 8), the freedom to choose the right to life (Article 2), the respect European Convention on Rights of the European Union an occupation and right to for private and family life (Article 7), Human Rights , notably the and the European Convention engage in work (Article 15), the the protection of personal data protection of personal data on Human Rights, and has to right to property (Article 17), the (Article 8), the freedom to choose an (Article 8), the freedom to be implemented in right to non-discrimination occupation and right to engage in choose an occupation and right accordance with those rights (Article 21), the rights of the work (Article 15), the right to to engage in work (Article 15), and principles." child (Article 24), the rights of property (Article 17), the right to the right to property (Article the elderly (Article 25), non-discrimination (Article 21), 17), the right to non- integration of persons with equality between men and women discrimination (Article 21), the disabilities (Article 26), the right (Article 23), the rights of the child rights of the child (Article 24), to family and professional life (Article 24), the rights of the elderly the rights of the elderly (Article 33); the right to social (Article 25), integration of persons (Article 25), integration of security and social assistance with disabilities (Article 26), the persons with disabilities (Article 34), the right to health right to family and professional life (Article 26), the right to family care (Article 35) and the right to (Article 33); the right to social and professional life (Article freedom of movement and security and social assistance 33); the right to social security residence (Article 45); and has to (Article 34), the right to health care and social assistance (Article (Article 35) and the right to 34), the right to health care 6
v. 28/01/2019 be implemented in accordance freedom of movement and residence (Article 35) and the right to with those rights and principles. (Article 45), as well as the Council of freedom of movement and Europe Convention for the residence (Article 45); and has Protection of Human Rights and to be implemented in Fundamental Freedoms, and has to accordance with those rights be implemented in accordance with and principles. those rights and principles. AM 50 18. Recital 48 (new) 19. (48) Nothing within this (48) Nothing within this Regulation (48) Nothing within this Regulation shall limit the shall limit the independent rights Regulation shall limit the independent rights and and obligations recognised in the independent rights and obligations recognised in the European Convention of Human obligations recognised in the European Convention of Human Rights notably the Right to Life European Convention of Rights notably the Right to Life (Article 2), the Right to protection Human Rights notably the (Article 2), the Right to from inhuman or degrading Right to Life (Article 2), the protection from inhuman or treatment (Article 3), the Right to Right to protection from degrading treatment (Article 3), Property (Article 1 of the first inhuman or degrading the Right to Property (Article 1 additional Protocol) and the right to treatment (Article 3), the Right of the first additional Protocol) non-discrimination (Article 14) and to Property (Article 1 of the and the right to non- this Regulation has to be first additional Protocol) and discrimination (Article 14) and implemented in accordance with the right to non-discrimination this Regulation has to be those rights and obligations. (Article 14) and this implemented in accordance with Regulation has to be those rights and obligations. implemented in accordance with those rights and obligations, 20. Recital 48a (new) 21. (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 7
v. 28/01/2019 (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. AM 51 22. Article 4 Article 4 Article 4 No COM or EP proposal, Equality of treatment Equality of treatment Equality of Treatment contains CL amendment 23. 1. Unless otherwise provided for by […] Unless otherwise provided for by 1. Unless otherwise provided for Unless otherwise provided for this Regulation, persons to whom this Regulation, persons to whom this by this Regulation, persons to by this Regulation, persons to this Regulation applies shall enjoy Regulation applies shall enjoy the whom this Regulation applies whom this Regulation applies the same benefits and be subject to same benefits and be subject to the shall enjoy the same benefits and shall enjoy the same benefits the same obligations under the same obligations under the legislation be subject to the same and be subject to the same legislation of any Member State as of any Member State as the nationals obligations under the legislation obligations under the the nationals thereof. thereof. of any Member State as the legislation of any Member nationals thereof. State as the nationals thereof. AM 67 All three institutions have the same position 24. 2. A Member State may require […] 2. A Member State may […] that the access of an economically require that the access of an inactive person residing in that AM 67 economically inactive person Member State to its social residing in that Member State EP and CL - same position security benefits be subject to the to its social security benefits be conditions of having a right to subject to the conditions of legal residence as set out in having a right to legal Directive 2004/38/EC of the residence as set out in 8
v. 28/01/2019 European Parliament and of the Directive 2004/38/EC of the Council of 29 April 2004 on the European Parliament and of right of citizens of the Union and the Council of 29 April 2004 on their family members to move the right of citizens of the and reside freely within the Union and their family 3 territory of the Member States. members to move and reside freely within the territory of the Member States. 3 25. Amending Regulation 26. Recital 5 27. (5) It is necessary to guarantee Deleted (5) […] In applying the legal certainty by clarifying that principle of equal treatment access to social security benefits […] provided for in Regulation for economically inactive mobile (EC) No. 883/2004, the case citizens in the host Member State, AM 15 law of the Court of Justice of may be made conditional upon the European Union needs to that citizen holding a legal right be respected. The Court has of residence in that Member interpreted that principle and State in accordance with the relationship between Directive 2004/38/EC of the Regulation (EC) No 883/2004 European Parliament and of the and Directive 2004/38/EC of Council of 29 April 2004 on the the European Parliament and right of citizens of the Union and of the Council of 29 April 2004 their family members to move on the right of citizens of the and reside freely within the Union and their family territory of the Member States. 4 members to move and reside For these purposes, an freely within the territory of economically inactive citizen the Member States […] in its 4 should be clearly distinguished judgments in cases C-140/12 from a jobseeker whose right of Brey, C-333/13 Dano, C-67/14 residence is conferred directly by Alimanovic, C-299/14 Garcia- 3 OJ L 158, 30.4.2004, p. 77 4 OJ L 158, 30.4.2004, p. 77. 9
v. 28/01/2019 Article 45 of the Treaty on the Nieto and C-308/14 Functioning of the European Commission v the United Union. Kingdom. 10
