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►B DECISION No 146
of 10 October 1990
concerning the interpretation of Article 94 (9) of Regulation (EEC) No 1408/71
(91/424/EEC)
(OJ L 235, 23.8.1991, p. 9)
Amended by:
Official Journal
No page date
►M1 Decision 98/442/EC No 167 of 2 December 1997 L 195 35 11.7.1998
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DECISION No 146
of 10 October 1990
concerning the interpretation of Article 94 (9) of Regulation (EEC)
No 1408/71
(91/424/EEC)
THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMU-
NITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,
Having regard to Article 81 (a) of Council Regulation (EEC) No 1408/
71 of 14 June 1971 on the application of social security schemes toemployed persons, to self-employed persons and to the members of theirfamilies moving within the Community, under which it is responsible for
dealing with all administrative questions and questions of interpretation
arising from the provisions of Regulation (EEC) No 1408/71 andsubsequent Regulations,
Having regard to Article 2 (1) of Council Regulation (EEC) No 574/72
of 21 March 1972 under which it is responsible for drawing up models
of certificates, certified statements, declarations, applications and other
documents necessary for the application of the Regulations,
Having regard to Council Regulation (EEC) No 3427/89 of 30 October
1989 which introduces a uniform solution for all the Member States tothe problem of the payment of family benefits to members of the family
not residing in the territory of the competent State,
Having regard to Article 94 (9), as amended by the said Regulation,
which on the one hand provides that the family allowances received byemployed persons employed in France in respect of the members of theirfamilies residing in another Member State on the date of 15 November
1989 shall continue to be paid at the rates, within the limits and
according to the procedures applicable on that date as long as theiramount exceeds that of the benefits that would be due as from the dateof 16 November 1989 and as long as the persons concerned are subjectto French legislation, and on the other hand provides that the
Administrative Commission shall deliver an opinion on the procedure
for implementing this paragraph, and in particular the sharing of the costof these allowances,
Whereas it is important to define exactly the scope of Article 94 (9) and
the conditions of its application;
Whereas it is necessary to lay down the procedure enabling the
provisions of the allowances, with regard to the responsibilities of theinstitutions concerned, the comparison between the amount of the familyallowances (guaranteed amount) and that of French family benefits, thepayment, where appropriate, of a supplement equal to the differencebetween these two amounts, and the sharing of the cost of these
allowances between the institutions concerned;
Whereas, moreover, it is necessary to specify the rate of conversion of
currencies to be used for the aforementioned comparison;
Whereas two specific model forms should be created, one certifying the
payment of family allowances for November 1989 and the other
certifying the continuation or termination of the payment of familyallowances pursuant to Article 94 (9);
Whereas the language in which the forms are to be issued has been
settled by Recommendation No 15 of the Administrative Commission;
Whereas, finally, the time limits applicable for the exercise of the right
to receive a guaranteed amount of family allowances should bedetermined;
Acting in accordance with the conditions laid down in Article 80 (3) of
Regulation (EEC) No 1408/71,1991D0424 — EN — 01.09.1991 — 000.001 — 2
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HAS DECIDED AS FOLLOWS:
1. (a) The provisions of Article 94 (9) of Regulation (EEC) No 1408/71
shall be applicable if on 15 November 1989 an employed personsubject to French legislation received the family allowancesprovided for in the former Article 73 (2) for the members of hisfamily residing in another Member State; they shall not beapplicable if the right to family benefits was acquired in the State
of residence on 15 November 1989; they shall permanently cease
to be applicable if subsequently a right to family benefits isacquired in the State of residence.
Moreover, the family allowances which an employed person
employed in France receives on 15 November 1989 for themembers of his family residing in another Member State shallcontinue to be provided pursuant to the provisions of Article 94(9) as long as the members of the family are still resident in the
territory of that other Member State.
(b) The family allowances referred to in Article 94 (9) of Regulation
(EEC) No 1408/71 shall be those that were effectively provided
to the employed person in November 1989 for the members of his
family qualifying for these allowances. The amount of theseallowances shall constitute the guaranteed amount.
The family benefits referred to in the said Article shall be the
French family benefits due to the employed person from 16November 1989.
(c) If for two consecutive months the amount of French family
benefits, except for those paid as a once-only payment (thesebeing disregarded for the purpose of the comparison) is higherthan or equal to the guaranteed amount for a given month,
entitlement to that amount shall be permanently withdrawn.
With regard to the condition, laid down in Article 94(9), of the
person concerned remaining subject to French legislation, noaccount shall be taken of interruptions of work of less than onemonth or of periods of temporary suspension of work due to
illness, maternity, accident at work, occupational disease or
unemployment, with the continued receipt of pay or receipt ofcorresponding benefits, except for pensions and annuities orbecause of paid leave, a strike or a lock out.
(d) The guaranteed amount shall be established definitively. In
particular, it cannot be reassessed subsequently either because ofa change in the rate of family allowances provided for by the
legislation of the Member State in whose territory the members of
the family resided on 15 November 1989 or because of anincrease in the number of members of the family.
However, in the event of a subsequent decrease in the number of
members of the family, referred to in Article 94 (9), in theMember State of residence, the guaranteed amount shall berecalculated by reference to the number of family membersremaining, at the rate and within the limits applicable on 15
November 1989 in the territory of the said Member State.
2. (a) In order to enable the French competent institution to determine
whether the provisions of Article 94 (9) should be applied, theinstitution of the place in which the members of the familyresided on 15 November 1989 shall, at the request of the persons
concerned or of the French institution issue a statement certifying
whether family allowances were or were not actually provided forNovember 1989, in accordance with the model form E 412 Fproduced below.
If family allowances were provided, the institution of the place of
residence shall on the certified statement specify the members ofthe family for whom they were provided as well as the amount ofthe allowances, per member of the family or for the family as a1991D0424 — EN — 01.09.1991 — 000.001 — 3
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whole, in accordance with the provisions of the legislation
applied.
The said certified statement must also specify whether the
employed person's spouse or the person to whom the familyallowances were provided pursued an occupation in November
1989 or an activity treated as such in accordance with Decision
No 199.
(b) Upon receipt of this certified statement, the French competent
institution shall, where appropriate, compare the amount of thefamily benefits referred to in the second sentence of paragraph1(b) with the guaranteed amount.
If the amount of the family benefits is higher than or equal to the
guaranteed amount, only the benefits shall be provided by thecompetent institution.
If the amount of the family benefits is less than the guaranteed
amount, the benefits shall be provided by the French competentinstitution and a supplement equal to the difference between theguaranteed amount and these benefits shall be provided by the
institution of the place of residence.
If the amount of the French family benefits is nil, the supplement
provided by the institution of the place of residence shall be equal
to the guaranteed amount.
(c) In order to make the comparison referred to in the preceding
subparagraph, the French competent institution shall convert theguaranteed amount to its own currency, using the rate ofconversion provided for in Article 107 (1) of Regulation (EEC)No 574/72. The rate of conversion to be taken into account shallbe the rate applicable on 16 November 1989.
3. (a) Where a differential supplement has to be provided, the French
competent institution shall every month send the institution of theplace of residence a certificate concerning the continuation ortermination of the provision of family allowances, in accordancewith the model form E 413 F reproduced below.
Upon receipt of this certificate, the institution of the place of
residence shall provide the supplement equal to the difference
between the guaranteed amount and the equivalent in its own
currency, at the official rate of exchange on the day ofcomparison, of the amount of the French family benefits.
(b) If the legislation applied by the institution of the place of
residence provides that the family benefits shall be provided atintervals other than monthly intervals, the said institution mayprovide the differential supplement in accordance with theseother intervals.
(c) If the person concerned ceases to benefit from the provisions of
Article 94 (9), the French competent institution shall use the
certificate referred to in the preceding subparagraphs to notify the
institution of the place of residence of the permanent terminationof entitlement to the guaranteed amount.
4. The competent authorities of the Member States shall make the forms
referred to in paragraphs 2 (a) and 3 (a) available to the competent
institutions concerned. These forms shall be available in the official
languages of the Community and shall be laid out in such a mannerthat the different versions are perfectly superposable to enable everyperson concerned to receive the forms in his own language.
5. In the event of a recalculation of the guaranteed amount, in
accordance with the conditions laid down in the third sentence ofparagraph 1 (d), the institution of the place of residence shall againissue the certificate referred to in paragraph 2 (a). The Frenchcompetent institution shall then make a new comparison as indicatedin subparagraphs 2 (b) and (c).1991D0424 — EN — 01.09.1991 — 000.001 — 4
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6. The cost of the allowances constituting the amount guaranteed by
Article 94 (9) of Regulation (EEC) No 1408/71 shall be shared in thefollowing manner:
— the French competent institution shall bear the cost of these
allowances up to the total amount of the French family benefitsprovided to the employed person for the members of his familyresiding in another Member State,
— the institution of the place of residence of the members of the
family shall bear the cost of the difference between the
guaranteed amount and the amount of these family benefits.
However, France and another Member State or their competent
authorities may agree or other cost-sharing arrangements and shallinform the Administrative Commission thereof.
7. For the exercise of the right, recognized by Article 94 (9), to receive a
guaranteed amount of family allowances, the two-year time limitprovided for by French legislation shall be suspended up to the date
of application of this Decision and shall apply only with effect from
the said date.
8. This Decision shall be applicable from the first day of the month
following its publication in the Official Journal of the European
Communities .
The Chairman of the Administrative
Commission
M. T. FERRARO1991D0424 — EN — 01.09.1991 — 000.001 — 5
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