COUNCIL REGULATION (EEC) No 1517/79 of 16 July 1979 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons and their families moving within the Community

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in particular Articles 2, 7 and 51 thereof,

Having regard to Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (1), as last amended by Regulation (EEC) No 2595/77 (2), and in particular Articles 95 and 97 thereof,

Having regard to Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (3), as last amended by Regulation (EEC) No 2595/77, and in particular Article 121 thereof,

Having regard to the proposal from the Commission (4) drawn up after consultation with the Administrative Commission on Social Security for Migrant Workers,

Having regard to the opinion of the European Parliament (5),

Having regard to the opinion of the Economic and Social Committee (6),

Whereas the experience gained while implementing Regulations (EEC) No 1408/71 and (EEC) No 574/72 has revealed the need to make some improvements to the rights of migrant workers ; whereas, consequently, persons who are called up or recalled for civilian service and who are, for certain benefits, treated as persons performing military service, should benefit under Regulation (EEC) No 1408/71;

Whereas the possibility provided for in Article 17 of Regulation (EEC) No 1408/71 should be extended to the bodies designated by the competent authorities of the Member States;

Whereas the changes made in United Kingdom legislation make it necessary to amend Annexes III and V to Regulation (EEC) No 1408/71 so as, on the one hand, to allow periods completed under the legislation of other Member States to be taken into account for the purpose of satisfying presence conditions laid down for the award of family allowances in the United Kingdom and, on the other hand, to introduce special provisions for calculating the amount of the additional component of pensions in the United Kingdom;

Whereas the lump-sum payment for following a course of medical treatment, on the occasion of confinement granted under German legislation, should be considered as a benefit in kind ; whereas certain changes in German legislation as regards the national financial administration also make it necessary to amend Annex V to Regulation (EEC) No 1408/71;

Whereas it is necessary for persons covered by Agreements concluded under Article 17 of Regulation (EEC) No 1408/71 to be provided with documentary evidence indicating which Member State's legislation they are subject to;

Whereas it is necessary to solve the practical difficulties which may arise for a worker, other than an international transport worker, who normally pursues his activity in the territory of two or more Member States; (1)OJ No L 149, 5.7.1971, p. 2. (2)OJ No L 302, 26.11.1977, p. 1. (3)OJ No L 74, 27.3.1972, p. 1. (4)OJ No C 115, 8.5.1979, p. 3. (5)OJ No C 140, 5.6.1979, p. 181. (6)Opinion delivered on 27 June 1979 (not yet published in the Official Journal).

Whereas provision should be made to simplify the procedure laid down by Regulation (EEC) No 574/72 to be followed in order that a worker posted to another Member State may obtain benefits in kind in the event of sickness, maternity, accident at work or occupational disease;

Whereas certain provisions of Annex 5 to Regulation (EEC) No 574/72 should be amended to take account of Agreements concluded between Member States;

Whereas the procedure for the payment of certain arrears and other single payments should be improved;

Whereas the provisions concerning the amendment of the Annexes to Regulations (EEC) No 1408/71 and (EEC) No 574/72 should be deleted in order to make it clear that these Annexes may only be amended by the Council acting unanimously;

Whereas, however, it should be made possible for Annexes 1, 4, 5, 6, 7 and 8 to Regulation (EEC) No 574/72 to be amended by means of a Regulation adopted by the Commission at the request of the Member State or Member States concerned or their competent authorities and after consultation of the Administrative Commission, since the sole aim of amending these Annexes is to incorporate in a Community instrument a decision adopted by the Member States concerned or by their competent authorities,

HAS ADOPTED THIS REGULATION:

Article 1

The Articles of Regulation (EEC) No 1408/71 shall be amended as follows: 1. Article 13 (2) (d) shall be replaced by the following:

"(d) a worker called up or recalled for service in the armed forces, or for civilian service, of a Member State shall retain the status of a worker and shall be subject to the legislation of that State. If entitlement under that legislation is subject to the completion of periods of insurance before entry into or after release from such military or civilian service, periods of insurance completed under the legislation of any other Member State shall be taken into account, to the extent necessary, as if they were periods of insurance completed under the legislation of the first State."

2. Article 17 shall be replaced by the following:

"Article 17

Exceptions to the provisions of Articles 13 to 16

Two or more Member States, the competent authorities of those States or the bodies designated by those authorities may, by common agreement, provide for exceptions to the provisions of Articles 13 to 16 in the interest of certain workers or categories of workers."

3. Article 95 shall be deleted.

Article 2

Annex III to Regulation (EEC) No 1408/71 shall be amended as follows: 1. The title shall read:

"ANNEX III

(Article 37 (2) of the Regulation)

Legislations referred to in Article 37 (1) of the Regulation under which the amount of invalidity benefits is independent of the length of periods of insurance"

2. Point I shall be replaced by the following:

"I. UNITED KINGDOM (a) Great Britain

Section 15 of the Social Security Act 1975

Sections 14 to 16 of the Social Security Pensions Act 1975

(b) Northern Ireland

Section 15 of the Social Security (Northern Ireland) Act 1975

Articles 16 to 18 of the Social Security Pensions (Northern Ireland) Order 1975"

Article 3

Annex V to Regulation (EEC) No 1408/71 shall be amended as follows: 1. In point C. GERMANY: (a) paragraph 7 shall be replaced by the following:

"7. For the purposes of the Regulation, the lump-sum payment for following a course of medical treatment on the occasion of confinement granted under German legislation to female insured persons and to members of the families of insured persons, shall be considered as a benefit in kind."

(b) the following paragraph shall be inserted after paragraph 9:

"10. Where the costs of benefits in kind which are granted by German institutions of the place of residence to pensioners or members of their family who are insured with competent institutions of other Member States must be refunded on the basis of monthly lump sums, such costs shall, for the purpose of financial equalization among German institutions of sickness insurance for pensioners, be treated as expenditure on the German sickness insurance scheme for pensioners. The lump sums refunded to the German institutions of the place of residence by the competent institutions of other Member States shall be regarded as receipts which must be taken into account in the aforementioned financial equalization."

2. In point I. UNITED KINGDOM: (a) paragraphs 1 and 2 shall be replaced by the following:

"1. All persons who are "employed earners" within the meaning of the legislation of Great Britain or of the legislation of Northern Ireland and all persons in respect of whom contributions are payable as "employed persons" in accordance with the legislation of Gibraltar shall be regarded as "workers" within the meaning of Article 1 (a) (ii) of the Regulation.

2. When a person who is normally resident in Gibraltar, or who has been required, since he last arrived in Gibraltar, to pay contributions under the legislation of Gibraltar as an employed person, applies, as a result of incapacity to work, maternity or unemployment, for exemption from the payment of contributions over a certain period, and asks for contributions for that period to be credited to him, any period during which that person has been working in the territory of a Member State other than the United Kingdom shall, for the purposes of his application, be regarded as a period during which he has been employed in Gibraltar and for which he has paid contributions as an employed person in accordance with the legislation of Gibraltar.

"

(b) paragraph 4 shall be deleted ; paragraphs 5 to 10 shall become paragraphs 4 to 9.

(c) the renumbered paragraph 4 shall be replaced by the following:

"4. (a) If unemployment benefit provided under United Kingdom legislation is paid to a person pursuant to Article 71 (1) (a) (ii) or (b) (ii) of the Regulation, then for the purpose of satisfying the conditions imposed by United Kingdom legislation in relation to child benefit concerning a period of presence within Great Britain or, as the case may be, Northern Ireland, periods of insurance or employment completed by that person under the legislation of another Member State shall be regarded as periods of presence in Great Britain, or, as the case may be, Northern Ireland.

(b) If, pursuant to Title II of the Regulation, United Kingdom legislation is applicable in respect of a worker who does not satisfy the condition imposed by United Kingdom legislation in relation to child benefit concerning: (i) presence within Great Britain or, as the case may be, Northern Ireland, he shall be regarded, for the purpose of satisfying such condition, as being so present;

(ii) a period of presence within Great Britain or, as the case may be, Northern Ireland, periods of insurance or employment completed by the said worker under the legislation of another Member State shall, for the purpose of satisfying such conditions, be regarded as periods of presence in Great Britain or, as the case may be, Northern Ireland.

(c) In respect of claims to family allowances under the legislation of Gibraltar the foregoing provisions of subparagraphs (a) and (b) shall apply by analogy."

(d) The renumbered paragraph 6 (b) shall be replaced by the following:

"(b) for the purposes of determining whether he was an employed earner under the legislation of Great Britain or the legislation of Northern Ireland or an employed person under the legislation of Gibraltar, by disregarding his absence from those territories."

(e) Paragraph 11 shall be deleted ; paragraphs 12 to 18 shall become paragraphs 10 to 16.

(f) The renumbered paragraph 10 shall be replaced by the following:

"10. For the purpose of determining entitlement to benefits in kind pursuant to Articles 22 (1) (a) and 31 of the Regulation, the expression "member of the family" shall mean: (a) as regards the legislation of either Great Britain or Northern Ireland, any person regarded as a dependant within the meaning of the Social Security Act 1975 or, as the case may be, the Social Security (Northern Ireland) Act 1975, and

(b) as regards the legislation of Gibraltar, any person regarded as a dependant within the meaning of the Group Practice Medical Scheme Ordinance 1973."

(g) The renumbered paragraph 15 shall be replaced by the following:

"15. (1) For the purpose of calculating an earnings factor with a view to determining the right to benefits under United Kingdom legislation, subject to paragraph 17, each week during which a worker has been subject to the legislation of another Member State and which commenced during the relevant income tax year within the meaning of United Kingdom legislation shall be taken into account in the following way: (a) for each week of insurance, employment or residence as a worker, the person concerned shall be deemed to have paid contributions as an employed earner on the basis of earnings equivalent to two thirds of that year's upper earnings limit;

(b) for each full week during which he has completed a period treated as a period of insurance, employment or residence, the person concerned shall be deemed to have had a contribution credited to him, but only to the extent required to bring his total earnings factor that year to the level required to make that year a reckonable year within the meaning of the United Kingdom legislation governing the crediting of contributions.

(2) For the purpose of converting an earnings factor into periods of insurance, the earnings factor achieved in the relevant income tax year within the meaning of United Kingdom legislation shall be divided by that year's lower earnings limit. The result shall be expressed as a whole number, any remaining fraction being ignored. The figure so calculated shall be treated as representing the number of weeks of insurance completed under United Kingdom legislation during that year provided that such figure shall not exceed the number of weeks during which in that year the person was subject to that legislation."

(h) The following paragraph shall be inserted after the renumbered paragraph 16:

"17. (1) For the purpose of calculating, under Article 46 (2) (a) of the Regulation, the theoretical amount of that part of the pension which consists of an additional component under United Kingdom legislation: (a) the expression "wages or salaries, contributions or increases" in Article 47 (1) (b) of the Regulation shall be construed as meaning surpluses in earnings factors as defined in the Social Security Pensions Act 1975 or, as the case may be, the Social Security Pensions (Northern Ireland) Order 1975;

(b) an average of the surpluses in earnings factors shall be calculated in accordance with Article 47 (1) (b) of the Regulation as construed in subparagraph (a) above by dividing the aggregated surpluses recorded under United Kingdom legislation by the number of income tax years within the meaning of United Kingdom legislation (including part income tax years) completed under that legislation since 6 April 1978 which occur within the relevant period of insurance.

(2) The expression "periods of insurance or residence" in Article 46 (2) of the Regulation shall be construed, for the purpose of assessing the amount of that part of the pension which consists of an additional component under United Kingdom legislation, as meaning periods of insurance or residence which have been completed since 6 April 1978."

Article 4

The Articles of Regulation (EEC) No 574/72 shall be amended as follows: 1. Article 4 (10) shall be replaced by the following:

"10. Annex 10 lists the institutions or bodies designated by the competent authorities pursuant, in particular, to the following provisions: (a) Regulation : Article 14 (3), Article 17;

(b) Implementing Regulation : Article 6 (1), Article 11 (1) Article 12a, Article 13 (2) and (3), Article 14 (1), (2) and (3), Article 38 (1), Article 70 (1), Article 80 (2), Article 81, Article 82 (2), Article 85 (2), Article 86 (2), Article 89 (1), Article 91 (2), Article 102 (2), Article 110, Article 113 (2)".

2. The sub-title preceding Article 11 and Article 11 itself shall be replaced by the following:

"Implementation of Articles 13 to 17 of the Regulation

Article 11

Formalities in the case of posting elsewhere pursuant to Article 14 (1) (a) and (2) (a) and in the case of Agreements concluded under Article 17 of the Regulation 1. The institution designated by the competent authority of the Member State whose legislation is to remain applicable shall issue a certificate stating that a worker shall remain subject to that legislation up to a specified date, (a) at the request of the worker or his employer in cases referred to in Article 14 (1) (a) and 2 (a) of the Regulation;

(b) in cases where Article 17 of the Regulation applies.

2. The consent provided for in Article 14 (1) (a) (ii) of the Regulation shall be requested by the employer".

3. The following Article shall be inserted after Article 12:

"Article 12a

Rules applicable in respect of a worker, other than one employed in international transport, who normally pursues his activity in the territory of two or more Member States 1. For the purposes of Article 14 (1) (c) (i) of the Regulation a worker who normally pursues his activity in the territory of two or more Member States shall notify this fact to the institution designated by the competent authority of the Member State in the territory of which he resides.

That institution shall issue to him a certificate stating that he is subject to the legislation of that Member State and shall send a copy thereof to the institution designated by the competent authority of any other Member State: (a) in the territory of which the said worker pursues a part of his activity and/or

(b) in the territory of which an undertaking or an employer by whom he is employed has its registered office or place of business. This latter institution shall, where necessary, send to the institution designated by the competent authority of the Member State whose legislation is applicable the information necessary to assess the contributions for which the employer or employers and/or the worker are liable by virtue of that legislation.

2. For the purposes of Article 14 (1) (c) (ii) of the Regulation a worker who normally pursues his activity in the territory of two or more Member States shall notify this fact to the institution designated by the competent authority of the Member State in the territory of which the undertaking or employer employing the said worker has its registered office or place of business.

The provisions of paragraph 1, second subparagraph (a) shall apply by analogy. However, the said worker may obtain the certificate in question through the institution designated by the competent authority of the Member State in the territory of which he resides."

4. Article 20 shall be replaced by the following:

"Article 20

Benefits in kind in the case of a stay in a Member State other than the competent State - special case of workers employed in international transport and members of their families 1. In order to receive benefits in kind for himself or for members of his family who accompany him, a worker employed in international transport, covered by Article 14 (1) (b) of the Regulation, who in the course of his employment goes to the territory of a Member State other than the competent State, shall, as soon as possible, submit to the institution of the place of stay, a special certified statement issued by the employer or by his agent during the current calendar month or during the two calendar months preceding its submission. Such certified statement shall state in particular the date from which the worker has been employed by the said employer, and the name and address of the competent institution ; if, however, under the legislation of the competent State the employer is not required to know the competent institution, the worker shall provide in writing the name and address of that institution when submitting his application to the institution of the place of stay. A worker who has submitted such certified statement shall be presumed to have satisfied the conditions for acquisition of the right to benefits in kind. If a worker is unable to contact the institution of the place of stay before receiving medical treatment, he shall nevertheless receive such treatment on presentation of the said certified statement as if he were insured with that institution.

2. The institution of the place of stay shall within three days inquire of the competent institution whether the person concerned satisfies the conditions for acquisition of the right to benefits in kind. The institution of the place of stay shall provide the benefits in kind until it receives a reply from the competent institution, but for not more than 30 days.

3. The competent institution shall send its reply to the institution of the place of stay within 10 days of the receipt of the request from that institution. If that reply is in the affirmative, the competent institution shall indicate, if necessary, the maximum period during which the benefits in kind may be granted, in accordance with the legislation which it administers, and the institution of the place of stay shall continue to provide the said benefits.

4. In place of the certified statement provided for in paragraph 1, a worker covered by that paragraph may submit to the institution of the place of stay a certified statement stating that the conditions for acquisition of the right to benefits in kind have been satisfied. This certified statement, which shall be issued by the competent institution, shall specify in particular, where necessary, the maximum period during which benefits in kind may be granted in accordance with the legislation of the competent State. In such a case paragraphs 1, 2 and 3 shall not apply.

5. The provisions of Article 17 (6), (7) and (9) of the Implementing Regulation shall apply by analogy.

6. Benefits in kind provided by virtue of the presumption made in paragraph 1 shall be reimbursed as provided for in Article 36 (1) of the Regulation."

5. The first sentence of Article 21 (1) shall be replaced by the following:

"In order to receive benefits in kind under Article 22 (1) (a) (i) of the Regulation, save in the case referred to in Article 20 of the Implementing Regulation, a worker shall submit to the institution of the place of stay a certified statement stating that he is entitled to benefits in kind."

6. Article 34 (1) shall be replaced by the following:

"1. If it is not possible during a worker's stay in a Member State other than the competent State to complete the formalities provided for in Article 20 (1) and (4) and Articles 21, 23 and 31 of the Implementing Regulation, his expenses shall, upon his application, be refunded by the competent institution in accordance with the refund rates administered by the institution of the place of stay."

7. Article 62 shall be replaced by the following:

"Article 62

Benefits in kind in the case of a stay in a Member State other than the competent State 1. In order to receive benefits in kind, a worker employed in international transport covered by Article 14 (1) (b) of the Regulation who, in the course of his employment, goes to the territory of a Member State other than the competent State, shall, as soon as possible, submit to the institution of the place of stay a special certified statement issued by the employer or by his agent during the current calendar month or during the two calendar months preceding its submission. Such certified statement shall state in particular the date from which the worker has been employed by the said employer and the name and address of the competent institution. A worker who has submitted such certified statement shall be presumed to have satisfied the conditions for acquisition of the right to benefits in kind. If a worker is unable to contact the institution of the place of stay before receiving medical treatment he shall nevertheless receive such treatment on presentation of the said certified statement as if he were insured with that institution.

2. The institution of the place of stay shall within three days inquire of the competent institution whether a worker covered by paragraph 1 satisfies the conditions for acquisition of the right to benefits in kind. The institution of the place of stay shall provide the benefits in kind until it receives a reply from the competent institution, but for not more than 30 days.

3. The competent institution shall send its reply to the institution of the place of stay within 10 days of the receipt of the request from that institution. If that reply is in the affirmative, the competent institution shall indicate, if necessary, the maximum period during which the benefits in kind may be granted, in accordance with the legislation which it administers, and the institution of the place of stay shall continue to provide the said benefits.

4. Benefits in kind provided by virtue of the presumption made in paragraph 1 shall be reimbursed as provided for in Article 36 (1) of the Regulation.

5. In place of the certified statement provided for in paragraph 1, a worker covered by that paragraph may submit to the institution of the place of stay a certified statement as provided for in paragraph 6.

6. In order to receive benefits in kind under Article 55 (1) (a) (i) of the Regulation, except in cases where a presumption is made under paragraph 1, a worker shall submit to the institution of the place of stay a certified statement stating that he is entitled to benefits in kind. Such certified statement, which shall be issued by the competent institution, if possible before the worker leaves the territory of the Member State in which he resides, shall specify in particular, where necessary, the maximum period during which benefits in kind may be granted, in accordance with the legislation of the competent State. If the worker does not submit the said certified statement, the institution of the place of stay shall obtain it from the competent institution.

7. The provisions of Article 60 (5), (6) and (9) of the Implementing Regulation shall apply by analogy."

8. Article 113 (1) and (2) shall be replaced by the following:

"1. If the right to benefits in kind is not recognized by the competent institution, the benefits in transport which have been provided to a worker in international transport by the institution of the place of stay by virtue of the presumption referred to in Article 20 (1) or 62 (1) of the Implementing Regulation, shall be refunded by the competent institution.

2. Expenses incurred by the institution of the place of stay in respect of any worker in international transport who has not previously applied to the institution of the place of stay and is not entitled to benefits in kind but has nevertheless received benefits in kind upon presentation of the certified statement referred to in Article 20 (1) or 62 (1) of the Implementing Regulation, shall be refunded by the institution shown as competent in the said certified statement or by any other institution designated for that purpose by the competent authority of the Member State concerned."

9. Article 121 shall be replaced by the following:

"Article 121

Special provisions concerning the amendment of certain Annexes

Annexes 1, 4, 5, 6, 7 and 8 to the Implementing Regulation may be amended by a Commission Regulation at the request of the Member State or Member States concerned or their competent authorities, after the opinion of the Administrative Commission has been obtained."

Article 5

Annex 5 to Regulation (EEC) No 574/72 shall be amended as follows: 1. The following paragraph shall be added in point 3. BELGIUM-FRANCE:

"(f) The Agreement of 3 October 1977 implementing Article 92 of Regulation (EEC) No 1408/71 (recovery of social security contributions)."

2. Point 13 shall be replaced by the following:

"13. DENMARK-LUXEMBOURG

The Agreement of 19 June 1978 concerning the reciprocal waiving of reimbursement provided for in Articles 36 (3), 63 (3) and 70 (3) of the Regulation and Article 105 (2) of the Implementing Regulation (costs of benefits in kind for sickness, maternity, accidents at work and occupational diseases, costs of unemployment benefit and costs of administrative checks and medical examinations)."

3. The following paragraph shall be added in point 16. GERMANY-FRANCE:

"(c) The Agreement of 14 October 1977 concerning the waiving of reimbursement provided for in Article 70 (3) of the Regulation (costs of unemployment benefit)."

4. Point 21 shall be replaced by the following:

"21. GERMANY-UNITED KINGDOM (a) Articles 8, 9, 25 to 27 and 29 to 32 of the Arrangement of 10 December 1964 on the implementation of the Agreement of 20 April 1960.

(b) The Agreement of 29 April 1977 concerning the waiving of the reimbursement of costs of benefits in kind for sickness, maternity, accidents at work and occupational diseases, costs of unemployment benefit and costs of administrative checks and medical examinations."

5. Point 29 shall be replaced by the following:

"29. IRELAND-NETHERLANDS

The exchange of letters of 28 July 1978 and 10 October 1978 regarding Articles 36 (3) and 63 (3) of the Regulation (partial reciprocal waiving of reimbursement of costs of benefits in kind for sickness, maternity, accidents at work and occupational diseases)."

Article 6

The general observation in Annex 6 to Regulation (EEC) No 574/72 shall be replaced by the following:

"General observation

Payments of arrears and other single payments shall in principle be made through the liaison bodies. Current and sundry payments shall be made in accordance with the procedures set out in this Annex."

Article 7

Point C. GERMANY of Annex 10 to Regulation (EEC) No 574/72 shall be amended as follows:

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Article 8

1. This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.

2. (a) Article 1 (2) shall be applicable as from 1 October 1979;

(b) Article 2 (1) shall be applicable as from 1 April 1973;

(c) Article 2 (2) shall be applicable as from 6 April 1978;

(d) Article 3 (1) shall be applicable as from 1 July 1977;

(e) Article 3 (2): - subparagraph (e) shall be applicable as from 2 January 1977,

- subparagraphs (g) and (h) shall be applicable as from 6 April 1978,

- subparagraphs (a), (b), (d) and (f) shall be applicable as from 6 April 1975 as regards the legislations of Great Britain and Northern Ireland,

- subparagraph (c) shall be applicable as from 4 April 1977 as regards the legislations of Great Britain and Northern Ireland,

- subparagraphs (a), (c), (d) and (f) shall be applicable as from 1 April 1973 as regards the legislation of Gibraltar;

(f) Article 4 (1) shall be applicable as from 1 October 1979;

(g) Article 5 (1) shall be applicable as from 1 May 1978;

(h) Article 5 (2) shall be applicable as from 1 April 1973;

(i) Article 5 (3) shall be applicable as from 27 April 1978;

(j) Article 5 (4) shall be applicable as from 28 December 1977;

(k) Article 5 (5) shall be applicable as from 1 April 1973;

(l) Article 7 (1), (2) and (3) shall be applicable as from 1 October 1979;

(m) Article 7 (4) and (5) shall be applicable as from 1 April 1973.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 16 July 1979.

For the Council

The President

G. COLLEY