20 Social Security for Migrant Workers
| (a)
(31875)
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(b)
(31876)
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(c)
(31877)
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(d)
(31878)
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(e)
(31879)
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(f)
(31880)
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Draft Council Decision on the position to be taken by the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States and the former Yugoslav Republic of Macedonia
Draft Council Decision on the position to be taken by the European Union within the Association Council created by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States and the Republic of Tunisia
Draft Council Decision on the position to be taken by the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States and the Republic of Croatia
Draft Council Decision on the position to be taken by the European Union within the Association Council created by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States and the Republic of Algeria
Draft Council Decision on the position to be taken by the European Union within the Association Council created by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States and the Kingdom of Morocco
Draft Council Decision on the position to be taken by the European Union within the Association Council created by the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States and the State of Israel
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| Legal base | Articles 79(2)(b) and 218(9) TFEU; co-decision; EP consent
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| Department | Work and Pensions
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| Basis of consideration | EMs of 30 June 2010 and 28 July 2010
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| Previous Committee Report | HC 16-ix (2007-08), chapter 19 (23 January 2008)
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| To be discussed in Council | Political agreement reached on 7 June 2010
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| Committee's assessment | Legally important
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| Committee's decision | Cleared; but further information requested
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Background
20.1 The EU and its Member States have concluded Stabilisation
and Association Agreements with the former Yugoslav Republic of
Macedonia and Croatia and Euro-Mediterranean Association Agreements
with Algeria, Israel, Morocco and Tunisia. All the Agreements
contain a provision on the entitlement of workers who are nationals
of the relevant third country, when legally employed in an EU
Member State, to certain social security benefits. So, for example,
nationals of the third country covered by the Agreement would
be able to take home with them the entitlement to old age and
some other benefits accrued while working in the EU. This entitlement
would extend to members of their family living with them in the
host Member State. As the arrangements are reciprocal, the provisions
on entitlement to social security benefits would also apply to
EU nationals legally employed in any of the afore-mentioned third
countries.
20.2 Each Agreement establishes an Association
Council which is empowered to adopt binding decisions and comprises
representatives of the EU, Member States and the third country.
A decision of each Association Council is required to give effect
to the provision on social security in each of the Agreements.
The draft Council Decisions establish the position to be taken
by the EU within each Association Council and include, as an Annex,
the draft implementing decision to be taken by the Association
Councils.
20.3 In 2008, the previous Committee considered
the drafts of six Decisions on the same matter and cleared them
from scrutiny. However, no further progress was made and negotiations
in Council only began earlier this year, after the entry into
force of the Lisbon Treaty on 1 December 2009.
The draft Decisions
20.4 The substance of the draft Decisions is
largely unchanged from the proposals cleared from scrutiny in
2008, but the entry into force of the Lisbon Treaty has necessitated
changes to the legal base. Departmental officials notified the
Committee by means of an unsigned Explanatory Memorandum in May
of the proposed new legal bases and indicated that there was some
doubt as to the procedure to be followed in the European Parliament
but that the intention was to reach agreement at the Employment,
Social Policy, Health and Consumer Affairs (EPSCO) Council on
7 June.
20.5 The new legal bases proposed were Articles
79(2), 217 and 218(9) of the Treaty on the Functioning of the
European Union (TFEU). Article 79(2)(a) provides for the adoption
of measures on the conditions of entry and residence of third
country nationals and Article 79(2)(b) provides for measures defining
the rights of third country nationals legally resident within
a Member State. Article 217 is the legal base enabling the EU
to conclude association agreements "involving reciprocal
rights and obligations, common action and special procedure"
with third countries. Article 218(9) empowers the Council to establish
the EU's position in bodies, such as the Association Council,
set up by international agreements entered into by the EU. The
inclusion of Article 79(2) TFEU means that the UK's opt-in applies
and that the UK will only be bound by the draft Council Decisions
if the Government decides to opt in.
20.6 Subsequently, the legal base for the proposed
Council Decisions was amended to refer only to Articles 79(2)(b)
and 218(9) TFEU.
The Government's view
20.7 In his Explanatory Memorandum of 30 June
2010, the Minister for Employment (Chris Grayling) says that the
EPSCO Council meeting on 7 June reached a political agreement
on the draft Decisions, by which stage the Government had decided
not to opt in. He cites as the legal base for the draft Council
Decisions Articles 79(2)(b), 217 and 218(9) TFEU and explains
that the Council working party was still considering the procedure
to be followed in the European Parliament.
20.8 In a further Explanatory Memorandum of 28
July, the Minister sets out the Government's reasons for deciding
against opting into the draft Decisions. He says that under the
Association Agreements, pension rights accrued by third country
workers within the EU must be freely transferable on their return
home at the rate applied by virtue of the legislation of the debtor
Member State. The draft Council Decisions, however, preclude any
reduction or modification of accrued pension rights once the beneficiary
has returned home. UK legislation provides for the payment of
retirement pensions and bereavement benefits anywhere in the world
but, if payment is outside the EU, it is paid at a frozen rate
and not index-linked unless a bilateral social security agreement
applies. The UK has bilateral agreements with the former Yugoslav
Republic of Macedonia, Croatia and Israel but not with Tunisia,
Algeria and Morocco. The Minister considers that the draft Council
Decisions go beyond the requirements set out in the Association
Agreements as the UK, had it chosen to opt in, would no longer
be able to pay pensions at a frozen rate to nationals of Algeria,
Morocco and Tunisia.
20.9 The Minister continues to cite Articles
79(2)(b), 217 and 218(9) TFEU as the legal bases for the draft
Decisions, even though the latest drafts we have seen, and which
were the basis for the political agreement in June, appear to
omit Article 217 TFEU. The Minister also indicates that Article
218(6)(a)(v) applies because measures based on Article 79(2) must
be adopted by co-decision (or the "ordinary legislative procedure"
under the new terminology in the Lisbon Treaty) and Article 218(6)(a)(v)
stipulates that the consent of the European Parliament is required
for international agreements covering areas of EU policy in which
the ordinary legislative procedure would apply.
20.10 Finally, the Minister says that that "the
Government is considering the implications of the new legal base
and the UK has not therefore made any commitment to opt in after
adoption".[94]
Conclusion
20.11 We note the Government's decision not
to opt into the draft Council Decisions for the time being, although
it would seem that the possibility of opting in after adoption
has not been definitively ruled out. We are concerned that there
appears to remain some doubt as to the appropriate legal bases
to cite, and the procedures which these will entail, particularly
with the European Parliament. We trust that this will be resolved
satisfactorily before the formal adoption of the draft Decisions.
20.12 While we are content to clear the draft
Decisions from scrutiny, we should nevertheless be grateful if
the Minister could provide further information on the following:
- the reason why Article 217 TFEU no longer
appears to be cited among the legal bases for the draft Decisions;
- whether he considers that Article 218(6)(a)(v)
TFEU should be cited among the legal bases for the draft Decisions,
not least so as to clarify the role of the European Parliament;
and
- what implications flow from the choice of
legal base which might affect the Government's decision to seek
to opt in after the formal adoption of the draft Council Decisions.
94 Minister's Explanatory Memorandum of 28 July 2010,
para 12. Back
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