Brussels, 27 January 2023
Interinstitutional files:
2016/0397 (COD)
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MEETING DOCUMENT
From:
General Secretariat of the Council
To:
Working Party on Social Questions (Social Policy and Related Legislation)
N° Cion doc.:
15642/16
Subject:
Proposal for a Regulation of the European Parliament and of the Council amending
Regulation (EC) No 883/2004 on the coordination of social security systems
and regulation (EC) No 987/2009 laying down the procedure for implementing
Regulation (EC) No 883/2004 (Text with relevance for the EEA and Switzerland)
In preparation of the meeting of the Social Questions Working Party on 8 February 2023, delegations will
find attached a steering note, setting out presidency compromise proposals.
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Steering note
Revision of Social Security Coordination
SQWP meeting on 08 February 2023
A. Introduction
In order to maintain and further develop competitiveness in the European Union, it is crucial
to modernise the coordination rules aiming to facilitate the free movement of persons. The
Commission proposal of 2016 on the revision of the social security coordination rules has
been negotiated for quite some time. Only a limited number of issues remain open in
negotiations, for which there is still the need to find compromise solutions agreeable to both
Member States and the European Parliament.
The following text:
  comprises proposals and their justifications, inspired by three main principles:
1.  a fair balance between the objective to fight fraud and error and the necessity
to avoid unnecessary administrative burden,
2.  a well-functioning and sustainable labour market, including for cross-border
workers, and
3.  clear and transparent rules for the citizens, employers and the authorities,
  presents proposals in comparison to document 15068/21 ADD 1, presented to
Coreper in December 2021. Changes compared to this document are marked in bold,
and deletions by […]. Other provisions set out in document 15068/21 ADD1 remain
unchanged.
  reflects the spirit of the latest Coreper mandate of 24 February 20211 and has been
inspired by later Presidency proposals as well as the provisional agreement of March
20192.
At the SQWP meeting scheduled for 8 February 2023, the Presidency intends to discuss the
amendments proposed below to ascertain the support of Member States for the continuation
of the negotiations with the European Parliament. The Presidency would appreciate, if
delegations would send in written comments by 6 February in order to allow for a focused
and result-oriented discussion.
To ensure that the negotiations with the European Parliament are conducted on the basis of
a clear and robust mandate, depending on the outcome of the SQWP, the Presidency intends
to present the results of the discussions to the Committee of Permanent Representatives for
its approval.


1 ST6051/21
2 ST7698/19 ADD1 REV 1

B. Applicable Legislation Chapter
Proposal for Article 14 (5a), Regulation 987/2009
5a. For the purpose of the application of Title II of the basic Regulation, ‘registered office or
place of business’ shall refer to the registered office or place of business where the essential
decisions of the undertaking are adopted and where the functions of its central administration
are carried out.
In determining the location of the registered office or place of business a series of factors
shall be taken into account, such as the length of time that the undertaking has been
established in the Member State, the place where the undertaking uses office space
and pays taxes, the number and value of contracts performed in the Member State of
establishment […] and the habitual nature of the activity pursued.
The determination shall be carried out in the framework of an overall assessment, giving due
weight to each relevant factor according to the circumstances of the case […]. The
Administrative Commission shall lay down the detailed arrangements for the determination.
Justification: The factors used in the assessment should address the level of business activity serving to steer
the undertaking in the Member State of establishment. The factors laid down in the General Approach are
difficult to determine in practice and do not take into account the recent changes in work pattern due to
digitisation like cloud computing. The Presidency believes that the factors should be measurable, and should
take into account the further digitisation of business processes, resulting in data that should be easy to collect
for concerned parties. The suggested factors meet these requirements. The reason for including ‘the value of
contracts’ is that the number of contracts would not in itself indicate the level of business activity, since the
value of a contract can differ. The factors proposed by the Presidency are mainly drawn from Article 4(2) of
the Posting Enforcement Directive3 and from the “Practical guide on the applicable legislation in the
European Union (EU), the European Economic Area (EEA) and in Switzerland”, issued by the
European Commission in December 2013, page 36.


3 Directive 2014/67/EU
1

Proposal for Article 15, Regulation 987/2009
1. Unless otherwise provided for by Article 16 of the implementing Regulation […], where a
person pursues his or her activity in a Member State other than the Member State competent
under Title II of the basic Regulation, the employer or, in the case of a person who does not
pursue an activity as an employed person, the person concerned, shall inform the competent
institution of the Member State whose legislation is applicable thereof before the start of the
activity […]. That institution shall issue the attestation referred to in Article 19(2) of the
implementing Regulation to the person concerned and shall without delay make information
concerning the legislation applicable to that person, pursuant to Article 11(4) or Article 12 of
the basic Regulation, available to the institution designated by the competent authority of the
Member State in which the activity is pursued. This paragraph shall not apply to business
trips or to activities with a duration of no more than three days within a period of 30
calender days.
1a. In cases where, due to the urgent nature of the activity, it is not possible in
practice to inform the competent institution before the start of the activity in another
Member State, the employer or, in the case of a person who does not pursue an
activity as an employed person, the person concerned, shall inform the competent
institution of the Member State whose legislation is applicable no later than three
days after the start of the activity.
In cases where an activity in a Member State other than the Member State competent
under Title II of the basic Regulation with an initial duration of no more than three
days is prolonged due to unforeseeable reasons, the employer or, in the case of a
person who does not pursue an activity as an employed person, the person concerned,
shall inform the competent institution of the Member State whose legislation is
applicable no later than on the third day of the activity. The employer or, in the case
of a person who does not pursue an activity as an employed person, the person
concerned, shall duly substantiate the reasons for such unforeseeable prolongation to
the competent institution of the Member State whose legislation is applicable thereof.
1aa. In situations falling under Article 11(4) or Article 12 of the basic Regulation, where the
attestation referred to in Article 19(2) of this Regulation is not yet issued under paragraph 1,
at the request of the institution of the Member State in which the activity is pursued, the
employer or, in the case of a person who does not pursue an activity as an employed person,
the person concerned, shall provide that institution with evidence showing either that he or
she has informed the competent institution of the Member State whose legislation is
applicable pursuant to paragraph 1 of this Article, or that he or she falls under one of the
exceptions laid down in paragraph 1 of this Article. Such evidence may be provided in
paper or in electronic form.
2

1ab. […]4 The coordination rules laid down in Articles 19a and 20(4) shall apply to the
institutions referred to in this Article for the purposes laid down herein.
2. Paragraph 1, 1a, 1aa and 1ab of this Article shall apply mutatis mutandis to persons covered
by Article 11(3)(b) and (d) and Article 11(5) of the basic Regulation.
Justification:  Even though the requirement of prior notification will not eliminate the risk of fraud and
error entirely, it still serves to enable social security institutions to address fraud and error.
At the same time, obligations for employers need to be clearly set out. Member States have raised the need for
a horizontal time-based exception in addition to the exception of business trips to alleviate employers,
employees, and the institutions concerned of the administrative burden. In addition to cases where there is no
need for prior notification, the proposed text encompasses cases where the notification can take place after the
start of the activity. These are cases where, due to the urgent nature of the activity, it is not possible in practice
to inform the competent institution before the start of the activity and cases where an activity with an initially
foreseen duration of no more than three days needs to be prolonged. In both cases, the employer or person
concern must notify the competent institution no later than 3 days after the start of the activity. The Presidency
suggests that the reference to the building sector is taken out as it is problematic to single only one sector out.


4 This is mainly an editorial change. The Presidency suggests 1) to refer to Articles 19a and 20(3) of Regulation 987/2009 (in their
version of doc 15058/21 ADD1) as these cover the same cases and 2) to align the time-limits in Article 20(3) and 20(4) with the time-
limit of the Article 19a (30 days – see below).
Proposal for Article 20, Regulation 987/2009
3. “For the purposes of application of Title II of the basic Regulation, the institutions of the Member States shall respond  to queries
received from the institutions of the other Member States within  30 working days from the receipt of the request.”
4. In case a person pursues an activity as an employed or a self -employed person in another Member State without the attestation
referred to in Article 19(2) of this Regulation, in accordance with Article 15(1) of the Implementing Regulation […], the relevant
institution in that Member State can request institution of the Member State whose legislation is applicable information conc erning the
legislation applicable to that person.
If the requested institution does not reply within 30 working days from the receipt of the request, the requesting instit ution may
proceed as if no document has been issued and shall inform the requested instition accordingly. If subsequently, the attestat ion is
issued by requested institution that attestation shall have, were appropriate, retroactive effect.
3

Proposal for Recital 40a, Regulation 883/2004
In accordance with the principles laid down in Article 6 of Regulation (EU) 2018/1724, as
from 12 December 2023 Member States are to ensure that users, subject to the establish-
ment of the relevant procedures, can access and complete a request […] for the
determination of applicable legislation in accordance with Title II […] fully online. The
procedure […] should be user-friendly and implemented in accordance with Article 39 of
Regulation (EU) 2018/1724. The present regulation and Article 4 of the Implementing
Regulation require Member States to progressively use new technologies for the
exchange, access and processing of the data required to apply the coordination rules.
These include […] the procedures referred to in Articles 15, 16 and 19 […] of the
implementing Regulation […]. It is of outmost importance to respond to the potentials
of new technology and digitalisation in relation to the coordination rules, including
via the Electronic Exchange of Social Security Information (EESSI).
Justification: The digitisation of processes is key for conciliating the need to fight fraud and abuse, while
keeping red tape to the strict minimum. Therefore it should be recognised in the regulation that digitisation
needs to be intensified and further developed by the Administrative Commission, as well as by the European
Commission and the Member States. This also represents an important request of the European Parliament.
Proposal for Recital 40b, Regulation 883/2004
Where a person pursues his or her activity in a Member State other than the competent
Member State, the competent institution of the Member State whose legislation is applicable
should as a main rule be informed thereof in advance. However, exceptions to the rule of
prior notification should […] be allowed in relation to business trips and activities with
a duration of no more than three days within a period of 30 calender days. In such
situations there is no requirement of an attestation.[…] In addition, in cases where,
due to the urgent nature of the activity or, it is not possible to inform the competent
authority in advance, it should be possible to exceptionally notify the competent
authority no later than three days thereafter. In cases where an initial period of three
days needs to be prolonged for genuine unforeseeable reasons, the competent
authority should be informed accordingly, pursuant to the main rule of prior
notification. In such instances, it should be possible to notify as of the third day of
activity, in accordance with the rules and time limits laid down in the Implementing
Regulation.
Justification: The amendment refers to the suggested changes in Article 15 in Regulation 987/2009.

4

C. Unemployment Benefits Chapter

Proposal for Article 65
Article 65 paragraph 1
1. A person who is wholly, partially or intermittently unemployed […] and who, during his
or her last activity as an employed or self-employed person resided in a Member State other
than the competent Member State, shall make himself or herself available to the employment
services in the competent Member State, or where applicable […], in the case of partially or
intermittently unemployed persons, […] to his or her employer.
Such a[…] person[…] shall receive benefits in accordance with the legislation of the
competent Member State as if he or she were residing in that Member State[…]. Such
benefits shall be provided by the institution of the competent Member State.
Justification: No substantive changes are proposed compared to the provisional agreement of December
20215. The proposed changes aim to align the text to the prevailing wording in the basic regulation, to make
some clarifications and better link the two clauses in paragraph 1.6
Article 65 paragraph 2
2. By way of derogation from paragraph 1, a wholly unemployed person […] who, during his
or her last activity as an employed or self-employed person[…] resided in a Member State
other than the competent Member State[…] and continues to reside in or has returned to
that Member State […] after becoming unemployed, and who[…]during that last
activity did not complete[…] an uninterrupted six-month period of insurance, employment
or self-employment […] exclusively under the legislation of the competent Member
State,[…] shall make himself or herself available to the employment services in the
Member State of residence.
[…] The unemployed person[…] referred to in the first subparagraph shall receive benefits
in accordance with the legislation of the Member State of residence as if he or she had
completed all periods of insurance, employment or self-employment under the legislation of
that Member State. Such benefits shall be provided by the institution of the Member State of
residence.

5 ST 15068/21 ADD 1
6 The addition of ’where applicable’ is reintroduced to clarify that the obligation of partially or intermittently unemployed p ersons to be
available to the employer depends on the requirements of the national legislation of the competent Member State.  Furthermore, it is
proposed to remove the reference to ‘the rights and obligations laid down in the applicable legislation ’ in light of the current legislative
regime and in accordance with the principle of equal treatment.

5

[…]
Justification: The Presidency proposes as criterion only one period of the last acitivity of uninterrupted
insurance, employment or self-employment in order to shorten the processing time, remove the uncertainty for
cross border workers, as well as ease the administrative burden for the institutions and facilitate the
implementation.
The Presidency moreover proposes the length of the affiliation period to be six months, as originally proposed in
the provisional agreement of March 20197. The main reason is to reach a fair balance between the length of
the affiliation period and the longer duration of the export of unemployments benefits for frontier and other
cross-border workers thereby ensuring a genuine link between the labour market of the Member State
competent for unemployment benefits and the job-seeker. This is a substantive change compared to the
provisional agreement of December 2021. If the cross-border activity was shorter than the defined 6
uninterrupted months, the person concerned should apply for and receive unemployment benefits in the Member
State of residence, provided that the last subparagraph of paragraph 2 is not applicable. In cases where the
Member State of residence becomes the competent Member State, there is however always the possibility to
make a supplementary registration in the Member State of last activity under paragraph 4, while the
competence to provide benefits rests with the Member State of residence. This is similar to the current legislative
regime for frontier workers who likewise shall apply for unemployment benefits strictly in the Member State of
residence. The third subparagraph on the return is furthermore proposed to be removed as was proposed by the
Commission and accepted in the General Approach. Persons might search for employment in a third Member
State and export their benefits, if the conditions of Article 64 are fulfilled. All other changes are of editorial
nature.
[…]Alternatively, a wholly unemployed person […] referred to in this paragraph, who
would be entitled to unemployment benefits solely under the national legislation of the
competent Member State […] may make himself or herself available to the employment
services in that Member State and receive benefits in accordance with the legislation of that
Member State as if he or she were residing there, without the application of Article 6 […].
Justification: The Presidency proposes to reintroduce the previous formulation from the Provisional
Agreement of March 2019 stating that persons covered by Paragraph 2 might alternatively apply for
unemployment benefits in the competent Member State even if the affiliation period of 6 uninterrupted months
has not been fulfilled8. The element of non-aggregation of periods is reintroduced because otherwise, this
subparagraph would not constitute a derogation to the principle of Paragraph 1 anymore. This is a substantive
change compared to the provisional agreement of December 2021.

7 ST 7698/19 ADD 1 REV 1.
8 Provided that the the person would be entitled to unemployment benefits solely under the national legislation of the competen t
Member State.
6

Article 65 paragraphs 2a. to 3b

2a. Paragraph 2 shall not apply to a wholly unemployed person who has […] most recently
completed periods of insurance as a self-employed person or periods of self-employment
recognised for the purposes of granting unemployment benefits in a Member State other
than his or her Member State of residence and whose Member State of residence has
submitted notification under Article 9 of the basic Regulation that there is no possibility for
any category of self-employed persons to be covered by an unemployment benefits system of
that Member State.
Justification: In line with the provisional agreement of March 2019 the element of ‘most recently’ is
reintroduced to clarify that it must be the last insurance/employment periods that shall have been completed.

3. If a wholly unemployed person as referred to in paragraph 1, the third subparagraph of
paragraph 2 or paragraph 2a does not wish to become or remain available to the employment
services of the competent Member State after having been registered there and decides to
seek work in the Member State of residence, Article 64, with the exception of point (a) of
paragraph 1 thereof, shall apply mutatis mutandis.
Justification: Purely editorial change.

3a. Where a wholly unemployed person as referred to in paragraph 3 has completed most
recently a period of at least 24 months of insurance, employment or self-employment
exclusively in the Member State to whose legislation he or she was last subject prior to
becoming unemployed, his or her entitlement to unemployment benefits shall be retained for
a period of 10 months, provided that the total duration for which the benefits are provided
does not exceed the total duration of the period of entitlement to benefits under the
legislation of the competent Member State. The competent institution may extend the
period of 10 months until the end of the period of that person’s entitlement to benefits.
Justification:  The Presidency proposes to maintain a longer export period for those frontier and other cross-
border workers having a longer affiliation period to the social security system of the Member State competent
for the unemployment benefits in accordance with the provisional agreement of December 2021. Furthermore,
’most recently’ is added to clarify that the period of 24 months required should be completed most recently in
order to be entitled to the retainment of benefits for 10 months.
7

3b. Where a wholly unemployed person as referred to in paragraphs 3 or 3a decides to seek
work in the Member State of residence and he or she completed periods of insurance,
employment or self-employment under the legislation of that Member State, aggregated with
periods completed in the Member State of the last activity and other Member States of other
previous activities, he or she may, after the end of the period during which he or she
received benefits from the institution of the competent Member State under
paragraphs 3 or 3a, claim unemployment benefits under the legislation of the Member State
of residence, as if he or she had completed all periods in that Member State.
The competent institution of the Member State of residence shall[…] grant unemployment
benefits in accordance with the legislation of that Member State. The period during which the
unemployed person received benefits under the legislation of the competent Member State
shall be deducted from the period of entitlement to benefits under the legislation of the
Member State of residence.
Justification: The Presidency proposes to retain the principle of shared competence, as agreed with the
European Parliament in December 2021. In accordance with views previously expressed by Member States,
the Presidency proposes to retain the requirement that the wholly unemployed person should have completed
periods of insurance, employment or self-employment in the Member State of residence, if he or she wishes to
claim unemployment benefits there. A change in the structuring of the paragraph is proposed, to clarify that an
unemployed person can claim unemployment benefits from the state of residence only after the export period
ended.
Proposal for Recital 10, Regulation 883/2004
There is a need to ensure greater parity of treatment for frontier and cross-border workers by
ensuring they receive unemployment benefits from the Member State of last activity provided
that they have completed a period of insurance, employment or self-employment in that
Member State for[…] an uninterrupted […]six-month period[…].
Justification: The amendment refers to the suggested changes in Article 65.2 in the basic regulation.

8

Document Outline