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31 March 1993
Doc. 6802
COMMUNICATION FROM THE COMMITTEE OF MINISTERS
Interim Reply to Recommendation 1144 (1991)
on the situation of frontier
populations and workers
(adopted by the Committee of Ministers on 22 March 1993
at the 490th meeting of the Ministers' Deputies)
1. As announced in the interim reply adopted in May 1991 to Assembly Recommendation 1144 (1991), the Committee of Ministers has consulted the Steering Committee on Local and Regional Authorities (CDLR) and the Steering Committee for Social Security (CDSS) on this Recommendation. With reference to the opinions of these two Steering Committees, the Committee of Ministers can now provide the additional information that follows.
2. On the question of transfrontier co-operation, the Committee of Ministers shares the Assembly's concerns with regard to the problems of frontier populations, and more particularly those of frontier workers. It considers that transfrontier co-operation must be encouraged within the member states of the Council of Europe, and particularly between member states of the European Community and non-EEC states, in order to ensure that no new barriers are erected following the establishment of the Single Market in 1993. On this point, the Select Committee of Experts on Transfrontier Co-operation has produced a study on "the implications for frontier regions of the completion of the Single Market", which was published in 1992. Also in 1992, the following two activities were launched and are underway:
- transfrontier fiscal equalisation concerning the taxation of incomes of border workers;
- infrastructure and public services in transfrontier employment areas (eg transport, communications, town planning and development etc).
3. The Committee of Ministers emphasises the importance of transfrontier co-operation between the member states of the Council of Europe and the non-member states in Central and Eastern Europe, as a means of providing the latter with adequate technical assistance for their adjustment to pan-European co-operation.
4. The Committee of Ministers considers that the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities, although a useful instrument for promoting transfrontier co-operation, leaves unsolved a number of questions specific to frontier workers, including social protection, fiscal legislation, equality of employment and working conditions, information and training. In so far as these problems are relevant to the borders between member states of the European Community, a satisfactory solution can be found only within the framework of Community law or bilateral agreements. The Council of Europe is particularly attentive to the problems that exist at the external borders of the member countries of the Council of Europe and those that arise at the borders between European Community and non-European Community countries.
5. The Committee of Ministers has given careful consideration to the Assembly's proposal concerning a "draft inter-state agreement on transfrontier co-operation in matters concerning lifelong training, information, employment and working conditions" (cf Appendix III to Recommendation 1144), which it suggests should be added to the texts appended to the European Outline Convention on Transfrontier Co-operation between Territorial Communities or Authorities (ETS No. 106). It regards the Assembly's draft as an important text that may meet the expectations of all frontier workers. It recalls that Article 3.1 of the European Outline Convention states that "these model and outline agreements [...] are intended for guidance only and have no treaty value". Consequently, the Assembly's draft is perfectly in line with the model inter-state agreements set out in Appendices 1.1 to 1.5 of the Outline Convention.
The Committee of Ministers has decided to submit the draft model inter-state agreement proposed by the Assembly to the CDLR. The CDLR has suggested adding a further article to the Assembly's draft, emphasising the need to develop co-operation between public employment bodies in frontier regions and the establishment of joint information centres for frontier workers. The Committee of Ministers will inform the Assembly of further developments once it has examined the revised draft agreement which the CDLR is to submit.
6. With regard to sub-paragraphs 10.e and 10.f of the Recommendation, the Committee of Ministers, while regarding as most constructive the proposal to continue the analysis of the difficulties of frontier regions and draw up a programme of specialist assistance to help frontier communities, nevertheless makes the point that the situation of frontier communities varies considerably depending on the frontier in question. It will bear these proposals in mind when examining the draft programme of intergovernmental activities for 1994 and when discussing the draft LODE programme.
7. With regard to sub-paragraph 10.c and Appendix I (list of principles to be applied to social security), the Committee of Ministers notes that, in general, the situation of frontier workers is not fundamentally different from that of other migrant workers. Consequently, provisions specifically concerning frontier workers are included in international social security instruments only when the need arises. This may be the case where sickness, maternity, unemployment or occupational injuries are concerned. The Committee of Ministers recalls that the main social security co-ordination instruments are:
- the European Convention on Social Security and Supplementary Agreement thereto (in force since 1 March 1977);
- Council Regulations (EEC) Nos. 1408/71 of 14 June 1971 and 574/72 of 21 March 1972 on (and fixing the procedure for) the application of social security schemes to employed persons and their families moving within the Community;
- numerous bilateral agreements.
8. With regard to Appendix I of Recommendation 1144, the Committee of Ministers notes:
i. Family allowances (items 1 and 14)
Whereas the Community regulations and the European Convention include co-ordination rules the effect of which is to prevent the absence or overlapping of entitlement to family benefits, the European Convention leaves the implementation of these rules to be settled through the conclusion of bilateral and multilateral agreements between the Contracting Parties;
ii. Invalidity or retirement pensions (items 2, 11, 12 and 13)
The introduction of a guaranteed minimum invalidity pension as proposed by the Assembly would be difficult to implement insofar as invalidity pensions are calculated in proportion to periods of employment which were subject to different legislative provisions. Under the Regulations, when a frontier worker has paid contributions exclusively in the country of employment, the payment of an invalidity pension is governed by the conditions of entitlement prevailing in the country of employment. A question arises if the worker has paid contributions in different countries. It would be difficult for a single country to calculate the relevant benefit when the worker has paid contributions in countries which have legislation of a different kind. Moreover, it should be noted that the European Convention contains no specific provisions on the subject.
iii. Medical assistance (item 7)
According to Recommendation 1144, frontier workers and retired frontier workers must be guaranteed a free choice of doctors and hospitals in both countries. While it may seem appropriate to ensure greater flexibility as regards conditions of access to care, this cannot be done without taking account of possible financial implications. The Commission of the European Communities said in 1990 (Document COM (90) 561 final) that it is desirable to make conditions of access to care on either side of the frontier more flexible for both the worker and members of his family.
iv. Unemployment (items 8 to 10)
The solution advocated by Recommendation 1144 is the opposite of the one stipulated in the Community Regulations which bind frontier workers who have become fully unemployed to their country of residence alone. Similarly, the Convention refers to the country of residence, subject to the conclusion of bilateral or multilateral agreements between the Contracting Parties.
Application of the principle proposed by Recommendation 1144, namely strengthening the unemployed worker's relations with the last country of employment (in terms of access to employment, the payment of unemployment benefit and co-ordination between the unemployment insurance bodies of both countries) is liable to raise many practical and administrative difficulties.
v. Social benefits (item 3 to 6)
The guarantee principle mentioned in item 3 is not enshrined in any international instrument and goes beyond the concept of co-ordination.
While the principle of non-discrimination can be adopted with regard to "all benefits pertaining to social cover" as a whole, the Committee of Ministers considers that in the specific case of social security, there should be special treatment in the case of certain benefits; the place of residence may be the deciding factor.
9. The objective of Recommendation 1144 is to establish closer links between frontier workers and their country of employment, while enabling them to retain close ties with their country of residence. As a result, the Assembly's proposal tends to favour the situation of the frontier worker by comparison with that of the other migrant workers. Considering how fundamental the principle of equal treatment is, the Committee of Ministers considers that special rules should be provided only in so far as they are justified by the particular situation of the frontier worker.