1988Y9309 — EN — 01.01.2007 — 002.001

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concerning the interpretation of Article 45 (1) to (3) of Council Regulation (EEC) No 1408/71 with regard to the taking into account of insurance periods completed under the legislations of other Member States for the acquisition, retention or recovery of the right to benefits

Amended by:

Amended by:

▼B

DECISION No 136

of 1 July 1987

concerning the interpretation of Article 45 (1) to (3) of Council Regulation (EEC) No 1408/71 with regard to the taking into account of insurance periods completed under the legislations of other Member States for the acquisition, retention or recovery of the right to benefits

(88/C 64/06)

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,

Having regard to Article 81 (a) of Council Regulation (EEC) No 1408/71 of 14 June 1971, under which it is made responsible for dealing with all administrative questions or matters of interpretation arising from the provisions of Regulation (EEC) No 1408/71 and subsequent Regulations,

Whereas Decision No 124, published in the Official Journal of the European Communities No C 180 of 18 July 1985, must be supplemented as from 1 January 1986 following the accession of Spain and Portugal to the EEC;

Whereas Article 45 of Regulation (EEC) No 1408/71 determines how, for the acquisition, retention or recovery of the right to benefits, account should be taken of periods completed in other Member States;

Whereas Article 45 (1) of Regulation (EEC) No 1408/71 provides that the competent institution of the Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance or residence shall take into account, to the extent necessary, periods of insurance or residence completed under the legislation of any Member State as if they were periods completed under the legislation which it administers;

Whereas the abovementioned Article 45 (1), which incorporates the general principle regarding the taking into account of periods, should be construed as meaning that the institution of a Member State administering a scheme which is not a special scheme within the meaning of Article 45 (2) or (3) of Regulation (EEC) No 1408/71 should, for the acquisition, retention or recovery of the right to benefits, take account of all periods completed under the legislation of any other Member State, whether under a general or a special scheme and whether as an employed or self-employed person;

Whereas the first subparagraph of Article 45 (3) of Regulation (EEC) No 1408/71 provides that where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation subject to a special scheme for self-employed persons, periods completed under the legislations of other Member States shall be taken into account for the granting of such benefits only if completed under a corresponding scheme or, failing this, in the same occupation;

Whereas for the purposes of applying the aforementioned provision it is necessary to determine which schemes are “special” schemes for self-employed persons;

Whereas the second subparagraph of Article 45 (3) of Regulation (EEC) No 1408/71 provides that if, taking into account the periods referred to in the first subparagraph of Article 45 (3), the person concerned does not satisfy the conditions for receipt of those benefits referred to in that first subparagraph, those periods shall be taken into account for the granting of the benefits under the general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate, in so far as they have been completed under a scheme other than the abovementioned corresponding scheme and provided that the person concerned has also been insured under this general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate;

Whereas the words “in so far as they have been completed under a scheme other than the abovementioned corresponding scheme” occurring in the aforementioned provision should be interpreted as: in so far as they have been completed under a corresponding scheme or under a scheme other than the abovementioned corresponding scheme;

Whereas periods of insurance completed under the legislation of one Member State which have already been taken into account under such a special scheme, as is referred to in the first subparagraph of Article 45 (3) of Regulation (EEC) No 1408/71, of another Member State, should be prevented from being also taken into account under the general scheme of the latter Member State;

Acting in accordance with Article 80 (3) of Regulation (EEC) No 1408/71,

HAS DECIDED AS FOLLOWS: