The Government this afternoon issued a statement in response to today’s European Commission Reasoned Opinion on Infringement No 2009/2161 with regard to Malta’s application of Article 46b of Regulation (EEC) No 1408/71 and Article 54 of Regulation (EC) No 883/2004 with regard to persons receiving a Maltese statutory social security pension and a civil service pension from another EU Member State.

The Government said that it “maintains its position that Malta is correctly applying the above-mentioned articles with respect to all pensions paid by any EU Member State and which fall within the scope of the above-mentioned Regulations. Therefore in Malta’s opinion, there is no breach of Community law for the following reasons:

i) Rights of freedom of movement

The Maltese situation clearly cannot be compared to any of the situations previously considered by the European Court of Justice where the general principle of the freedom of movement of workers was elaborated. In the Malta case, with particular regard to the category of Maltese pensioners in receipt of a UK service pension who never resided or worked in the UK, there is neither an element of movement from one country to another (since these employees never left Malta and never contributed towards the UK social security scheme), nor is there a situation which is specifically and expressly provided for in the Regulations at issue.

It is, therefore, evident that this general legal concept cannot be uprooted from its very specific sphere of application and blindly applied to the Maltese situation which is of a totally different nature.

ii) the assumption of existence trans-boundary element

The Commission assumes that there is a clear trans-boundary element in Malta’s case. However, it is clear that Article 2 of Regulation (EEC) 1408/71 and/or Regulation (EC) 883/2004 was never intended by the EU legislator to regulate the sui generis historical and constitutional context of Malta under British rule between the 19th and mid-20th century.

Moreover, it should be noted that Article 7(2)(c) of Regulation (EEC) 1408/71 and Article 8(1) of Regulation (EC) 883/2004 provide that certain provisions of social security conventions entered into by Member States before the date of application of these Regulations shall continue to apply and will not be affected by the Regulations if, amongst others, they arise from specific historical circumstances.

iii) The obligation of Member States to consider the real nature of benefits in another Member State even though the latter Member State does not classify them as falling within the scope of the Regulations

Since Regulation (EEC) 1408/71 and/or Regulation (EC) 883/2004 establish “a system of coordination” of Member States’ social security systems, and since the UK does not consider these specific service pensions to fall within the scope of these Regulations, Malta cannot be obliged to disregard the UK’s declaration and classification of its own pensions. Nevertheless, the Commission expects Malta to apply the Regulation contrary to the classification given by the UK to its own service pensions. Were Malta, or any other Member State, to do this, the whole system of social security coordination between the EU Member States would be seriously jeopardised since all EU Member States would be able to pick and choose at will which declarations under Articles 5 and 9 of the respective Regulations to respect, leading to an incoherent and un-coordinated application of the Regulations. As guardian of the Treaties, the Commission has the obligation to ensure that all declarations are in line with the spirit of the Regulations, in such a way that Member States can then effectively coordinate their social security systems on the basis of such declarations, as required by EU law.

iv) No entry by Malta in Annex IX, Part D of Reg 1408/71 or in Annex IX of Reg 883/2004

The Commission also argues that Malta’s situation cannot be exempt from Regulation (EEC) 1408/71 and/or Regulation (EC) 883/2004 because Malta did not make an entry in Annex IX, Part D of Reg 1408/71 or in Annex IX of Reg 883/2004. However, it is clear that Malta could not have made such an entry due to the fact that such entries only apply to a type of pensions the amount of which is not dependent on the length of an insurance or employment period. In fact, the Maltese social security pensions are of a different type of pensions because their amount is dependent on the length of an insurance or employment period.

Notwithstanding the above arguments, Malta will be analysing in depth the Reasoned Opinion issued by the European Commission and will present its views again to the Commission in due course.”

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