General Principles of Coordination in Regulation 883/2004
| Author | Yves Jorens,Filip van Overmeiren |
| DOI | 10.1177/138826270901100103 |
| Published date | 01 March 2009 |
| Date | 01 March 2009 |
| Subject Matter | Article |
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 47
GENERAL PRINCIPLES OF COORDINATION
IN REGULATION 883/2004
Y J and F V O*
Abstract
Fi y years a er Regulation 1408/71, a new Coordination Regulation, 883/2004 , will
shortly enter into force and become the new coordination instrument. e general
principles of the coordination of social security (equal treatment, aggregation
of periods, export of bene ts and rules for the determination of the applicable
legislation) still constitute, a er 5 decades, the general framework of coordination.
No fundamental changes can be reported , although these principles were adapted in
line with the modernisation and simpli cation exercise of the whole coordination
framework, in order to take into account several developments in national social
security legislation a s well as in the case law of the European Court of Justice. New
developments in the framework of European citizenship, and the in uence of the
other “constitutional” principle of the free movement of people in the EU Treaty,
play an important role and might in the future further challenge the coordination
framework. is is in particular the case with respect to the derogations to the
exportability rule , as well as with respect to the rul es on the applicable legislation. e
general rule on equal treatment was strengthened through the generalisation of the
assimilation of facts. Although some small improvements have been obtained with
respect to the personal and mater ial scope of the Regulation, a lot of burning issues
remain and already call for further attention in the future. Regulation 883/2004
might be the welcomed new start of the coordination f ramework, but the challenge s
currently encountered raise the question whether it is not time to re ect on a new
framework, perhaps leaving aside decisions taken decades ago and re-con rmed
today by the community legislator.
* Yves Jorens, Professor of Europe an Social Law, Facult y of Law, Ghent University, Universiteitstra at
4, Gent, BE 900 0 Belgium; e-mai l: Yves.Jorens@UGent.be; Fi lip Van Overmeiren, Res earcher,
Faculty of Law, Ghent Univer sity, Universiteitstra at 4, Gent, BE 900 0 Belgium; e-mai l: Filip.
VanOve rm eir en@ UGe nt .be .
Yves Jorens and Filip Van Overmei ren
48 Intersentia
Keywords: socia l security of migrant workers; general principles of coordination of
social security; equal treatment; aggregation of periods; export of bene ts and rules
for the determination of the applicable legi slation; administrative cooperation
1. INTRODUCTION
e new, long-awaited, Regulation 883/20041 will become applicable when the
Im pl e me nt i ng R eg u la t io n en te rs i nt o fo rc e, m os t l i k el y i n t he ye a r 2 01 0. e Regulation
introduces a new set of rules to govern t he coordination – rather than harmonisation
– of the social secu rity legislation of the Member States, which should moderni se and
simplify the c urrent provisions of Regulations 1408/712 and 574/72.3 ese rules4 ‘fall
within t he framework of the free movement of persons and should contribute towards
improving their standard of living and conditions of employment’5 and will replace
the rules of the current Regulation 1408/71. In addition to ‘the rules’ – i.e. all the
provisions in the Regulation coordinating horizontal matters, applicable legislation,
the special provisions relating to various social secu rity bene ts, and administrative
and nancial provisions – this regulation also contains a handful of ‘general
principles’ that are crucia l to social security coordinat ion.
Although commentators’ views sometimes vary on what these coordination
principles are exactly, a common denominator can be found in: equal treatment,
aggregation of periods, export of bene ts and the applicable legislation. Sometimes
a h general principle is added, i.e. good cooperation and administration. In this
article, the persona l and material scope are included in thi s list. If Regulation 1408/71
is regarded as a central organ of the free movement of persons in the EU, these
principles should be considered as arteries, because they play an important role as
the basis for the whole system of coordi nation of social security. at these principles
1 Regulation 883/2004 of 29 April 2004 on the coordination of social security systems, OJ L 166/1 of
30 April 2004.
2 Regulation 1408/71 of 14 June 1971 on the applicat ion of social secu rity schemes to employed
persons, to self-e mployed persons and to members of t heir families mov ing within t he Community
(Consolidated version), OJ L 28/1 of 30 Ja nuary 1997.
3 Regulation 574/72 of 21 March 1972 layi ng down the procedu re for implementing Regu lation (EEC)
1408/71 on the application of so cial securit y schemes to employed person s, to self-employed persons
and to their fa milies moving w ithin the C ommunity (Consolid ated version), OJ L 28/1 of 30 Janu ar y
1997.
4 e Eu ropean Commis sion, DG Employment, Socia l A airs and Equa l Opportunit ies have set up a
network of independent ex perts (coordinated by Ghent Univers ity Belgium, Yves Jorens) to inform
them about the applic ation and implementation of Reg ulations 1408/71 and 574/72 in the Member
Stat es (t he so -ca lle d trE SS n etwo rk: Tr ai ning and Repo rti ng on Euro pea n Soc ial Sec uri ty la w: w ww.
tress-network .org.). On the website a lot of informat ion can be found on thes e Regulations a s well as,
for instance, a t able of concordance between t he provisions of Regula tion 1408/71 and 883/2004.
5 Recital 1 of the Prea mble of Regulation 883/200 4 of 29 April 2004, OJ L 166/1 of 30 Apri l 2004.
General Pri nciples of Coordination in Re gulation 883/2004
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 49
are key to coordination is clearly shown by the fact that they always appear at every
stage of debate relating to the coordination of social security. Firstly, they were the
basis for the rst talks on the reform of the regulation. Secondly, they reappeared i n
the parameters for reform, the ‘new way forward ’ presented during the 2001 Belgian
Presidency. irdly, as this article will conclude, they have remained practically
unchanged in the new regulation. Finally, they are in fact crucial for the level of
coordinat ion of social secur ity bene ts. Indeed, compared to some f ully coordinated
bene ts, other policy areas are subject to a lower level of coordination due to the
absence of such a coordination principle. Exa mples of this are the derogat ions to the
export of bene ts (unemploy ment bene ts, sp ecial non-contributory bene ts) and the
aggregation of periods (pre-retirement bene ts).
In the following sections, the provisions of the new Regulation 883/2004 are
analysed from t he perspective of these coordination principles.
2. A STRONGER PRINCIPLE OF GOOD ADMINISTRATION
Alongside the other main and well known principles relating to the coordination
of social security, the new regulation has brought one existing principle to the
forefront. How innovative this principle is, is debateable. It can be regarded as the
con rmation, and rst clear codi cation, of a set of indispensable ru les for the good
functioning of the coord ination system. Already long acknowledged by those dealing
with the coordinat ion of social secu rity as of paramount importance for the smooth
implementation of the rules,6 good administration and cooperation has clearly
been vested with a higher status in the new coordination system. Such cooperation
and communication between the competent institutions is in e ect the fundament
and conditio sine qua non for the other principles of coordination, the latter being
impossible to operate without the former. e practical applicat ion of the principles of
equal treatment, the a ggregation of periods, the expor t of bene ts or the determination
of the applicable legislation would not be achievable without the intervention of the
relevant national administrations of the Member States. One could even claim that
the e ort to formulate the most e cient way of administrating this complex set of
rules might be of greater importance than changing the legal content of the main
regulation.
e principle of good administration and cooperation is already included in the
current system of Regulation 1408/71. Articles 84 and 84(a) on ‘cooperation between
competent authorities’ and on ‘relations between the institutions and the persons
covered by this regulation’ alre ady comprise rules to make sure that t he administrative
6 Perrin, G., La sécur ité sociale, son histo ire a travers les texts, tom e V, Histoire du droit inte rnational
de la sécurité sociale, Pa ris, Association pour l’é tude de l’Histoire de la Sécurité Soc iale, 1993, 362–
363. Perrin cal ls it ‘a general principle int rinsically relate d to every system’.
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