DECISION No 129 of 17 October 1985 concerning the application of Articles 77, 78 and 79 (3) of Regulation (EEC) No 1408/71 and of Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72 (86/C 141/07)

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 122 of 20 April 1983 should be amended to take account of the judgment delivered by the Court of Justice in Case 320/82;Whereas Judgment 733/79 delivered by the Court of Justice of the European Communities, hereinafter referred to as 'the Court of Justice', on 12 June 1980 rules as follows:'Article 77 (2) (b) (i) of Regulation (EEC) No 1408/71 must be interpreted as meaning that entitlement to family benefits payable by the State in whose territory the recipient of an invalidity pension resides does not extinguish the right to higher family benefits awarded previously by another Member State.If the amount of family benefits actually received by the worker in the Member State in which he resides is less than the amount of the benefits provided for by the legislation of the other Member State, he is entitled to a supplement to the benefit from the competent institution of the latter State equal to the difference between the two amounts';Whereas Judgment 807/79 delivered by the Court of Justice of the European Communities on 9 July 1980 rules as follows:'Article 78 (2) (b) (i) of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 must be interpreted as meaning that the entitlement to benefits payable by the State in whose territory the orphan to whom they have been awarded resides does not remove the entitlement to higher benefits previously acquired by virtue of the legislation of another Member State alone. Where the amount of benefits actually received in the Member State of residence is less than that of the benefits provided for by the legislation of the other Member State alone, the orphan is entitled to a supplement of benefit, payable by the competent institution of the latter State, equal to the difference between the two amounts.';Whereas Judgment 100/78 delivered by the Court of Justice of the European Communities on 6 March 1979 rules as follows:'1. Within the meaning of Article 79 (3) of Regulation (EEC) No 1408/71 of the Council the suspension of the right to family allowances for dependent children of the father who is in receipt of a pension under the legislation of a Member State is not applicable if the mother has not actually acquired the right to these same allowances under the legislation of another Member State by virtue of the pursuit of a professional or trade activity or, in any event, because the conditions upon which the award to the mother of the right to receive the allowances depend are not fulfilled.2. Article 79 (3) is applicable only up to the amount actually received by virtue of the pursuit of the professional or trade activity.';Whereas the Court of Justice in its Judgment 320/82 of 24 November 1983 ruled as follows:'Articles 77 and 78 of Regulation (EEC) No 1408/71 must be interpreted as meaning that, where a deceased father has been subject to the legislation of more than one Member State, entitlement to an orphan's pension acquired under the legislation of the Member State which is competent according to those provisions does not extinguish entitlement to higher orphan's benefits under the legislation of another Member State alone. Where the amount of the benefits actually received in the first Member State is less than of the benefits provided for by the legislation of the other Member State alone, the orphan is entitled to a supplement from the competent institution of the latter State equal to the difference between the two amounts.';Whereas overlapping of benefits may result from the occurrence of an event giving rise under the legislation of a Member State to the acqusition of a right to benefits for dependent children of pensioners or for orphans, already enjoying rights to benefit under the legislation of another Member State; whereas this is the case in respect of the pursuit of a professional or trade activity, the acquisition of a right to pension in the State of residence, or where the pensioner or orphans change their residence;Whereas overlapping of benefits may also occur where an event gives rise to the acquisition of a right to benefits both under the legislation of a Member State in accordance with the provisions of Articles 77 and 78 of Regulation (EEC) No 1408/71 and in another Member State by virtue of its national legislation alone;Whereas, furthermore, the overlapping of benefits due pursuant to Article 77 or 78 of Regulation (EEC) No 1408/71 with benefits or family allowances due under other legislation is governed, on the one hand, by Article 79 (3) of the aforementioned Regulation where entitlement to benefits or family allowances accrues from the pursuit of a professional or trade activity and, on the other hand, by Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72 where entitlement to benefits or family allowances is not dependent on conditions relating to insurance, employment or self-employment; whereas the rules laid down by these provisions are substantially the same; whereas, consequently, for the purposes of applying the aforementioned Article 10 (1) (b) (ii), there is reason to take account of the interpretation given by the Court of Justice to the aforementioned Article 79 (3);Whereas, in order to implement the judgments of the Court of Justice in respect of Articles 77, 78 and 79 of Regulation (EEC) No 1408/71, it is in fact necessary to determine the cases in which a supplement must be paid and to specify the procedures for the determination of this supplement and the duties of the institutions;Acting in accordance with Article 80 (3) of Regulation (EEC) No 1408/71,HAS DECIDED AS FOLLOWS:1. Where the amount of the benefits specified in Article 77 (1) of Regulation (EEC) No 1408/71 which were received by the person who is entitled to a pension due under the legislation of a Member State where he was residing is higher than the amount of the benefits that he receives under the legislation of another Member State to which he has transferred his place of residence and under whose legislation a pension is also due, Article 77 (2) must be applied under the conditions laid down in paragraph 5 of this Decision in such a way that entitlement to benefits under the legislation of the first Member State is maintained in so far as the amount thereof exceeds the amount of benefits actually received under the legislation of the new country of residence.2. Where the amount of the benefits specified in Article 78 (1) of Regulation (EEC) No 1408/71 which were awarded under the legislation of a Member State in respect of an orphan residing in that State is higher than the amount of the benefits which are due in respect of that orphan under the legislation of another Member State to which he has transferred his place of residence, Article 78 (2) must be applied under the conditions laid down in paragraph 5 of this Decision in such a way that entitlement to benefits under the legislation of the first Member State is maintained in so far as the amount of such benefits exceeds the amount actually received under the legislation of the new country of residence.3. Where the amount of benefits for orphans or dependent children of person entitled to a pension due under the legislation of one Member State alone is higher than the amount of benefits due under the legislation of another Member State regarded as competent according to the provisions of Articles 77 and 78 of Regulation (EEC) No 1408/71, the right to benefits under the legislation of the former Member State shall be maintained, in accordance with the provisions of paragraph 5, in so far as the amount of such benefits exceeds the amount actually received under the legislation of the latter Member State.4. Article 79 (3) of Regulation (EEC) No 1408/71 and Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72 must be applied in accordance with the provisions of paragraph 5 of this Decision in such a way that the right to benefits due under the legislation of a Member State pursuant to Article 77 (2) or 78 (2) is suspended only up to the amount of family benefits or family allowances actually received under the legislation of another Member State by virtue of the pursuit of a professional or trade activity.5. In the cases referred to in paragraphs 1, 2, 3 and 4 the competent institution of the first Member State shall award a supplement to the benefits granted under the legislation of the second Member State, equal to the difference between the amount of the benefits actually received under the legislation of the second Member State and the amount of the benefits due under the legislation of the first Member State.This supplement shall be determined taking account solely of children or orphans in respect of whom entitlement existed before the place of residence was transferred, before the occupational activity was pursued, before the acquisition of a new right to benefits in accordance with the legislation of a second Member State, or at such time as rights are simultaneously acquired under the legislation of one Member State alone and under the legislation of another Member State in accordance with the Community provisions. This supplement shall be granted as long as the conditions required for entitlement to benefit under the legislation of the first Member State are satisfied. Where the conditions required for entitlement to benefit under the legislation of the second Member State are no longer satisfied the first Member State shall pay, instead of the supplement, the full amount of the benefits which are still due under its own legislation.6. The amount of the supplement shall be determined for the first time at the very latest on the expiry of a period of 12 months after the right to benefits in the second Member State has been acquired. Thereafter the supplement shall be determined at least every 12 months. Where the legislation of a Member State provides that a claim must be submitted for the granting of benefits, a claim should likewise be submitted for the supplement.7. The competent institution or institutions of the second Member State shall inform the competent institution or institutions of the first Member State immediately of the date on which the right is acquired under the legislation applied by these institutions and also of the nature and amount of the benefits.After expiry of the period referred to in paragraph 6, the institution or institutions of the second Member State shall inform the institution or institutions of the first Member State of the exact amount of the benefits which were paid by the institution or institutions of the second Member State in the expired periods.8. Once the amount of the supplement has been determined, the supplement shall be granted in accordance with the legislation of the first Member State and in accordance with the provisions of Regulations (EEC) No 1408/71 and (EEC) No 574/72 relating to the benefits in question.9. After expiry of the period referred to in paragraph 6, the institution or institutions of the first Member State shall inform the beneficiary of the decision to award or refuse a supplement and shall indicate:(a) the amount of the benefits due under the legislation of this Member State;(b) the amount of the benefits actually paid under the legislation of the other Member State;(c) the amount of any supplement.10. The rate of exchange to be applied in order to compare the amounts of the benefits for the purpose of paragraph 9 shall be the rate applicable in accordance with Article 107 (1) to (3) of Regulation (EEC) No 574/72.For the purposes of implementing this Decision, the institutions shall use the forms drawn up for Chapters 7 and 8 of Regulation (EEC) No 1408/71, to which, where necessary, any further information considered to be necessary by the institutions in question shall be added.11. This Decision, which replaces Decision No 122 of 20 April 1983, shall be published in the Official Journal of the European Communities.It shall enter into force on the first day of the month following its publication in the Official Journal of the European Communities.The Chairmanof the Administrative CommissionG. SCHROEDER