Regulation 883/2004 and Invalidity and Old-Age Pensions

Date01 March 2009
AuthorHerwig Verschueren
Publication Date01 March 2009
European Jour nal of Social Sec urity, Volume 11 (2009), Nos. 1–2 143
H V*
is article examines the provisions in Regulation 883/2004 on pensions, and
compares them with those of Regulation 1408/71. It does not enter into the sometimes
very technical details, particularly with regard to the rules on the calculation and
award of pensions, but it rather analyses the main characte ristics of the coordination
of these bene ts in the new regulation. It  rst comments on horizontal issues such a s
the material scope of the new regulat ion and the general principles of the aggregation
of periods and the as similation of facts.  is p art foc use s in p art icul ar o n the pos itio n
of non-statutory schemes, funded schemes and pre-retirement bene ts.  e article
continues by analysing the rules in Regulation 883/2004 on the calculation and
award of invalidity and old-age bene ts. It further explores to what extent the new
provisions in Regulation 833/2004 really introduce novelties into the coordination
system for invalidity and old-age pension s. It also examines the issue of whether the se
provisions adequately respond to new developments in the pension schemes of the
Member States, including the introduction of non-stat utory and funded schemes.
Keywords: EU social s ecurity coordination; Regu lation 883/2004; invalidity p ensions;
old age pensions
In general we can say that t he provisions on invalidity bene ts and old-age pensions
in Regulation 883/2004 do not di er much from those in Regulation 1408/71.  e
latter were the subject of in depth mod i cations in 1992, fur ther to a large number of
* Herwig Verschueren is Professor of Int ernational and European Lab our and Social Securit y Law
at the University of Ant werp and the Free University of Brussel s; e-mail: Her wig.Verschueren@
Herwig Verschueren
144 Intersentia
judgements by the European Cour t of Justice (ECJ) in the 1970s and 80s, in part icular
on the calculation of bene ts and the application of national and European rules to
prevent the overlapping of bene ts. Since these modi cations have not generated
muc h ju di cia l o r po li tic al de bat e a  er wa rds , t hey we re c ons ide re d as bei ng sat is fa cto ry
overall .  us both the European Commission in it proposal of 1998 and the Council
and t he Europ ean Parl iament ( EP) in the agreed text of R egulat ion 883/2 004 bas icall y
follow the same system. In the new regulation, the current provisions of Regulation
1408/71 are therefore simpli ed rather than being really altered. However, some
changes have been introduced, not only in relation to the calculation as such of these
bene ts, but also in relat ion to the scope of the new regulation and the application of
its general principles. We will d iscuss  rst the latter i ssues before commenting on the
amendments regarding the c alculation of bene ts.
Departing f rom the de nition in Reg ulation 1408/71, the Europea n Commission had
prop ose d in its i nit ial prop osa l of 1 2 Dec emb er 19 981 that the de nition of ‘legislation’
should include the ‘contractual provisions which have been the subject of a decision
by the public authorities rendering them compulsory or extending their scope’.  is
proposal was intended to bring an important number of non-statutory occupationa l
pensions schemes within the scope of the new coordination system, insofar as the
public authorities had rendered them compulsory or extended them to persons
who were not themselves part of the contract. As a consequence of this extension
of the scope of the coordination system, the regulation’s principles, including the
exportability of bene ts, the pro-rata calculation and the aggregation of periods
of insurance, would become applicable to these pension schemes. Accordingly,
important obstacles to the full implementation of the rights to free movement for
workers covered by these pension schemes would be overcome. Regulation 1408/71,
in contrast, is not automatically applicable to such schemes. Its article 1(j) excludes
from its scope ‘provisions of existi ng or future industrial agreements, w hether or not
they have been the subject of a decision of the authorities renderi ng them compulsory
or extending their scope.’ Member States are, however, allowed to li this limitation
by a declaration specifying such schemes. Such a declaration should be noti ed to
the president of the Council and publis hed in the O cial Journal.2 However, the fact
1 COM(1998) 779  na l, OJ C 38, 12 Februar y 1999, p. 10. See in particu lar the proposed Ar ticle 7(h).
2 An example of such declaration i s the one of France on its AGIRC and ARCCO schemes. It is not
necessar y for such declaration s to have legal e ect that they be submitted to t he pension fund
concerned for approval .  e s econd subparagraph of Ar ticle 1(j) of the Regulation doe s not require

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