Explanatory Memorandum to COM(2012)156 - EU position within the Stabilisation and Association Council EU-Montenegro with regard to the provisions on the coordination of social security systems - Main contents
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This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)156 - EU position within the Stabilisation and Association Council EU-Montenegro with regard to the provisions on the coordination ... |
|---|---|
| source | COM(2012)156  |
| date | 30-03-2012 |
Article 51 of the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and Montenegro, of the other part i ("the Agreement"), lays down that the Stabilisation and Association Council shall, by decision, put provisions in place to implement the principles on the coordination of social security systems set out in that Article.
Article 51 of the Agreement with Montenegro contains provisions for limited coordination between the social security systems of Member States and Montenegro. A Decision of the Stabilisation and Association Council established by the Agreement is required in order that the principles set out in Article 51 can take effect.
A number of other Agreements with third countries contain similar provisions on the co-ordination of social security systems. This proposal is part of a package of proposals which includes similar proposals with regard to the Agreements with Albania, San Marino and Turkey. A first package with similar proposals in respect of Algeria, Morocco, Tunisia, Croatia, the former Yugoslav Republic of Macedonia and Israel was adopted by the Council in October 2010.[2]
In order to establish the position to be taken on behalf of the Union in this Stabilisation and Association Council, a Council Decision is necessary.
At the level of the European Union, Member States' social security systems are coordinated by Regulation (EC) No 883/2004 i and its implementing Regulation (EC) No 987/2009 i.
Council Regulation (EU) No 1231/2010 i extends the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 to nationals of third countries who are not already covered by those provisions solely on the grounds of their nationality. This Regulation already covers the principle of aggregation of insurance periods acquired by Montenegrin workers in the various Member States regarding entitlement to certain benefits, as set out in Article 51(1)(a) of the Agreement with Montenegro.
The Stabilisation and Association Agreement with Montenegro has as one of its objectives to support the efforts of Montenegro to develop its economic and international cooperation. The Agreement is a step towards preparing Montenegro for accession to the EU. Implementation of the social security coordination provisions in Article 51 of the Agreement between the EU and Montenegro will enhance the special relationship with Albania, as envisaged in Article 8 TEU.
Contents
- RESULTS OF CONSULTATIONS WITH THE INTERESTED PARTIES AND IMPACT ASSESSMENTS
- LEGAL ELEMENTS OF THE PROPOSAL
- BUDGETARY IMPLICATION
- Grounds for and objectives of the proposal
- General context
- Existing provisions in the area of the proposal
- Consistency with other policies and objectives of the Union
- Consultation of interested parties
- Collection and use of expertise
- Impact assessment
- Summary of the proposed action
- Legal basis
- Subsidiarity principle
- Proportionality principle
- Choice of instruments
- 5. OPTIONAL ELEMENTS
- Detailed explanation of the proposal
- Article 1
- Part I: General provisions
- Article 2
- Article 3
- Part II
- Article 4
- Part III
- Article 6
- Article 7
- Article 8
- Article 9
- Article 10
- Article 11
- Article 12
- Article 13
The proposal for limited coordination between the social security systems of the Member States and Montenegro is modelled almost identically on the package of six draft Association Council Decisions, respectively Stabilisation and Association Council Decisions, in respect of Algeria, Morocco, Tunisia, Croatia, the former Yugoslav Republic of Macedonia and Israel, in respect of which the European Union position was decided by the Council in October 2010. Detailed negotiation took place in Council in 2010 on the content of such decisions. These negotiations were preceded by an intensive discussion with all Member States in the Administrative Commission for the Coordination of Social Security Systems.
There was no need for external expertise.
Article 51 of the Agreement with Montenegro contains the principles for limited coordination between the social security systems of Member States and Montenegro. Additionally, a number of other agreements with third countries contain similar provisions on the coordination of social security systems. All of them require a Decision of the relevant body set up by those agreements so that the coordination principles can take effect.
The aim of the Articles on social security in these agreements is that a worker from the associated country concerned can receive certain social security benefits provided under the legislation of the Member State(s) to which he is or has been subject. This also applies, by way of reciprocity, to an EU national working in the associated country.
As the provisions in the proposals included in the current package of proposals with regard to four countries (Albania, Montenegro, San Marino and Turkey) are almost identical – and also almost identical to the first package of six decisions in respect of Algeria, Morocco, Tunisia, Croatia, the former Yugoslav Republic of Macedonia and Israel adopted by the Council in October 2010, this will facilitate the application of these provisions by Member States' social security institutions. There might be some financial implications for national social security institutions resulting from the application of these proposals, since they have to provide, for example, the benefits as described in Article 51 of the Agreement with Montenegro. However, this Article only concerns persons who are or have been contributing to the national social security system of the country concerned, as provided for under its national legislation. In any case, it may be difficult to gauge the precise impact of these proposals on the national social security systems at this stage.
This proposal consists of a Council Decision on the position to be taken on behalf of the Union within the Stabilisation and Association Council established by the Agreement with Montenegro and, in the Annex, of a draft Decision of the Stabilisation and Association Council in the social security field.
The proposed Decision of the Stabilisation and Association Council fulfils the requirement of Article 51 of the Agreement with Montenegro for such a Decision, in order to put in place the social security principles contained in that Article. The Decision therefore contains implementing provisions with regard to those provisions of Article 51 of the Agreement with Montenegro which are not already covered by Regulation (EU) No 1231/2010.
Moreover, the proposed Decision of the Stabilisation and Association Council ensures that the provisions on the export of benefits and the granting of family benefits also apply, by way of reciprocity, to EU workers legally employed in Montenegro and to their family members legally resident in Montenegro.
Article 218(9) of the Treaty on the Functioning of the European Union in conjunction with its Article 79(2)(b). As a consequence, Denmark will not participate in the adoption of this decision. Neither will Ireland and the United Kingdom participate in the adoption of this decision, unless notice is given of the wish to take part in the adoption and application of it. The non-participation of these countries in the Council decision is without prejudice to their participation in the decision of the Stabilisation and Association Council.
The Agreement with Montenegro provides for principles on coordination of social security systems which have to be applied equally by all Member States. The implementation of these principles should therefore be submitted to uniform conditions, which can be better achieved at Union level.
The proposal complies with the proportionality principle for the following reasons.
Member States continue to have exclusive competence in determining, organising and financing their national social security systems.
The proposal only organises to some extent the coordination of social security systems of Member States and Montenegro, to the benefit of the citizens of these countries. Moreover, the proposal does not affect any rights and obligations arising from bilateral social security agreements concluded between the Member States and Montenegro where the latter provide for more favourable treatment of the persons concerned.
The proposal minimises the financial and administrative burden for national authorities, as it is part of a package of similar proposals which ensure a uniform application of social security provisions contained in Association Agreements with third countries.
Proposed instruments: Council Decision (containing in Annex a draft Stabilisation and Association Council Decision).
Other means would not be adequate for the following reason.
There is no alternative option to the proposed action. Article 51 of the Agreement requires a Decision of the Stabilisation and Association Council. Article 218(9) of the Treaty on the Functioning of the European Union provides for a Council Decision for the purpose of establishing the positions to be adopted on behalf of the Union in a body set up by an agreement, when that body is called upon to adopt decisions having legal effects.
The proposal has no implications for the budge of the European Uniont.
Simplification
The proposal will lead to simplification of administrative procedures for national public authorities and simplification of administrative procedures for private parties.
The provisions in the proposal relating to the coordination of social security systems for Montenegrin nationals are almost identical to those for the nationals of the other associated countries. This will lead to a simplification of the procedures and fewer administrative burdens for national social security institutions.
Persons falling under the proposal are not confronted with different national provisions as regards the social security principles contained in Article 51 of the Agreement with Montenegro, and can therefore rely instead on uniform provisions within the Community.
A. Council Decision on the position to be taken on behalf of the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement with Montenegro with regard to the provisions on the coordination of social security systems.
This Article provides for the adoption of the EU position in the EU-Montenegro Stabilisation and Association Council.
B. Annexed draft Decision of the Stabilisation and Association Council with regard to the provisions on the coordination of social security systems contained in the Agreement.
Article 1
This Article defines, for the purposes of the legislation of a Member State and for the purpose of the legislation of Montenegro, the terms 'Agreement', 'Regulation', 'implementing Regulation', 'Member State', 'worker', 'member of the family', 'legislation', 'benefits' and 'exportable benefits', and refers to the Regulation and implementing Regulation for the other terms used in the annexed Decision.
In line with the wording of Article 51 of the Agreement with Montenegro, this Article defines the persons covered by the annexed Decision.
This Article provides for non-discriminatory treatment of all persons covered by the Agreement with regard to all social security benefits covered by it.
Relations between the Member States and Montenegro
This Part of the annexed draft Decision covers the principles contained in Article 51(1)(b) of the Agreement with Montenegro as well as the reciprocity clause with regard to EU nationals and the members of their family, as provided for in Article 51 i.
This Article contains the principle of the export of cash benefits as provided for in Article 51 (1)(b) of the Agreement with Montenegro and makes it clear that this principle is limited to the benefits contained in Article 1(1)(i) of the annexed Decision which lists the benefits referred to in this paragraph.
Miscellaneous provisions
Article 5
This Article contains general provisions for cooperation between Member States and their institutions, of the one part, and Montenegro and its institutions, of the other part, as well as between the beneficiaries and the institutions concerned. These provisions are similar to those of Article 76 i, i, first and third sub-paragraphs, and i of Regulation (EC) No 883/2004.
This Article lays down the procedures for administrative checks and medical examinations similar to those contained in Article 87 of Regulation (EC) No 987/2009. Moreover, it provides for the possibility to adopt other implementing provisions in this area.
This Article refers to the possiblity to use the conflict settlement procedure laid down in the Agreement.
This Article refers to Annex II to the annexed Decision which is similar to Annex XI to Regulation (EC) No 883/2004, and which is necessary in order to lay down the necessary special provisions for the application of Montenegrin legislation with regard to the annexed Decision.
This Article allows administrative proedures from existing agreements between a Member State and Montenegro to continue to apply under certain conditions.
This Article provides for the possibility to conclude supplementary administrative Agreements.
The transitional provisions provided for under this Article are similar to the transitional provisions in Article 87 i, i, i, i and i of Regulation (EC) No 883/2004.
This Article clarifies the legal status of the Annexes to the annexed Decision and the procedure for amending them.
This Article clarifies the date of entry into force of the annexed Decision.