Explanatory Memorandum to COM(2012)152 - EU position within the Association Council EU-Turkey with regard to the provisions on the coordination of social security systems - Main contents
Please note
This page contains a limited version of this dossier in the EU Monitor.
| dossier | COM(2012)152 - EU position within the Association Council EU-Turkey with regard to the provisions on the coordination of social security ... |
|---|---|
| source | COM(2012)152  |
| date | 30-03-2012 |
It follows from Article 12 of the Agreement establishing an association between the European Economic Community and Turkey i ("the Ankara Agreement") and Article 36 of the Additional Protocol to the Ankara Agreement i ("the Additional Protocol") that freedom of movement for workers between the Union and Turkey is to be secured by progressive stages. Article 9 of the Ankara Agreement provides that within the scope of the Agreement any discrimination on grounds of nationality shall be prohibited. Article 39 of the Additional Protocol lays down that the Association Council shall adopt social security measures for workers of Turkish nationality moving within the Union and for their families residing in the Union, and lists some coordination principles which those measures should implement.
As a first step towards the implementation of these social security coordination principles in the Ankara Agreement and its Additional Protocol, Decision No 3/80 of the Association Council on the application of the social security schemes of the Member States of the European Communities to Turkish workers and members of their families was adopted by the Association Council on 19 September 1980 i ("Decision No 3/80"). The second step, namely the adoption of a Regulation to implement the provisions of Decision No 3/80, was never taken. i
In the meantime, the Court of Justice has held that Article 3 i of Decision No 3/80, the principle of non-discrimination, and Article 6 of this Decision, the requirement to waive residence clauses in respect of benefits payable under the Decision, have direct effect and can be relied upon before the national courts.[5]
In order to provide legal certainty and to give full effect to the principles of social security coordination contained in the Ankara Agreement and its Additional Protocol, it is necessary that a new decision is adopted by the Association Council, to replace Decision No 3/80. The Commission's previous proposal to implement Decision No 3/80 will be withdrawn, as it is envisaged that the new Association Council decision will implement in one step the obligations in the Agreement and its Protocol.
The provisions of the Ankara Agreement and the Additional Protocol on the freedom of movement of workers and the measures adopted to implement them, in particular Association Council Decision No 1/80, should be accompanied by appropriate social security coordination measures. Moreover, Article 39 of the Additional Protocol contains explicit provisions for coordination between the social security systems, which need to be implemented. A Decision of the Association Council is required to that effect.
A number of other Association Agreements with third countries contain also provisions on the coordination of social security systems. This proposal is part of a package of proposals which includes similar proposals with regard to the Agreements with Albania, Montenegro and San Marino. 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.[6]
In order to establish the position to be taken by the Union in the 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 Turkish workers in the various Member States regarding entitlement to certain benefits, as set out in Article 39 i of the Additional Protocol to the Agreement with Turkey.
Turkey has been associated with the European integration project ever since the signature of the Ankara Association Agreement in 1963, which was supplemented in 1970 with an Additional Protocol. These agreements provide as an aim, to be achieved by progressive stages, the free movement of workers between Turkey and the EU. As a corollary to these provisions that set out a programme, Article 39 of the Additional Protocol lays down provisions on social security coordination. Full implementation of these provisions will enhance the special relationship with Turkey, as envisaged in Article 8 TEU. At the same time, it will permit Turkey to align its policies on social security coordination with those of the EU in preparation for future accession to the EU.
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
This proposal for coordination of the social security systems of the Member States and Turkey will replace Decision No 3/80. The proposal 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 39 of the Additional Protocol to the Agreement with Turkey contains provisions on coordination between the social security systems of Member States and Turkey. A number of other agreements with third countries contain also provisions on the coordination of social security systems. All of them require a Decision of the relevant body set up by these agreements so that the principles, as set out in Article 39, can take effect.
The aim of the provisions on social security in such 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 all the provisions included in the current package of proposals with regard to the four associated 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 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 39 of the Additional Protocol. 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 Association Council established by the Agreement with Turkey and, in the Annex, of a draft Decision of the Association Council in the social security field.
The proposed Association Council Decision fulfils the requirement of Article 39 of the Additional Protocol for such a Decision, in order to put in place the social security principles contained therein. The Decision contains moreover implementing provisions with regard to those provisions of Article 39 of the Additional Protocol to the Agreement with Turkey which are not already covered by Regulation (EU) No 1231/2010. In addition, specific provision is made – as was made in Decision No 3/80 - to implement Article 9 of the Agreement in the field of social security coordination.
Moreover, the proposed Decision of the 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 Turkey and to their family members legally resident in Turkey. As the Association Council Decision would in doing so go beyond the scope of Article 39 of the Additional Protocol, the draft Association Council Decision is also based on Article 22 i of the Ankara Agreement.
The Council Decision on the position to be taken in the Association Council should be based on Article 218 i of the Treaty on the Functioning of the European Union (TFEU) in conjunction with Article 48 TFEU.
Indeed, the Ankara Agreement and the Additional Protocol provide for a legal situation which has to be distinguished from the legal situation set by the other relevant Association Agreements with social security provisions, since – in contrast with these other agreements - the Ankara Agreement and the Additional Protocol clearly provide for the free movement of workers as a goal to be secured in progressive stages. In this context, the notion of free movement of workers has to be understood in the same way as in the relevant Union provisions (cf. Article 12 of the Ankara Agreement).
It is true that the free movement of workers between Turkey and the EU has not at all been achieved, and that it is therefore not possible to describe the current legal situation as an extension of the internal market with respect to free movement of persons (as is the case for the EEA and Switzerland). Nevertheless, in view of the different perspective set by the Association Agreement and the Additional Protocol, which aim at extending so far as possible to Turkish nationals the principles laid down in the Union provisions on free movement of workers i, the implementation of the social security provisions, which constitute a necessary corollary to the movement of workers, must in the same way find its legal basis in Article 48 TFEU.
The Additional Protocol 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 the coordination of social security systems of Member States and Turkey for 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 Turkey 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 Association Council Decision).
Other means would not be adequate for the following reasons.
There is no alternative option to the proposed action. Article 39 of the Additional Protocol to the Agreement requires a Decision of the respective Association Council. Article 218 i of the Treaty 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 Union budget.
Simplification
The proposal will lead to simplification of administrative procedures for national public authorities, and simplification of administrative procedures for private parties.
A. Council Decision on the position to be taken on behalf of the Union within the Association Council created by the Association Agreement with Turkey 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 - Turkey Association Council.
B. Annexed draft Decision of the Association Council with regard to the provisions on the coordination of the 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 Turkey, 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 39 of the Additional Protocol to the Agreement with Turkey, 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 the social security benefits covered by it.
Relations between the Member States and Turkey
This Part of the annexed Decision covers the principles contained in Article 39 i of the Additional Protocol with Turkey as well as the reciprocity clause with regard to EU nationals and the members of their family.
This Article contains the principle of the export of cash benefits as provided for in Article 39 i of the Additional Protocol with Turkey 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 Turkey 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 Turkish legislation with regard to the annexed Decision.
This Article allows administrative proedures from existing agreements between a Member State and Turkey 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. In addition, there is a provision to protect the rights of Turkish workers who, as a result of the judgment of the Court of Justice in Case C-485/07 Akdas concerning the direct effect of Article 6 i of Decision No 3/80, are prior to the entry into force of the Decision being provided with a pension or benefit by a Member State.
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.