Consolidated version of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (92/C 325/01)

INTRODUCTION

This edition:

- consolidates the operative part of and the Annexes to Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons and to members of their families moving within the Community (OJ N° L 149, 5. 7. 1971, p. 2; Special edition 1971 (II), p. 416; Danish text: EFT, Specialudgave, 1971 (II), p. 366; Greek text: AAAA AAéaeéêÞ AAêueïóç, 1980 (05.001), ó. 73; Spanish text: DO Edicíon especial, 1985 (05.01) p. 98; Portuguese text: JO Edição Especial, 1985 (05.01) p. 98, in part II),

- updating the recitals since the adoption of Regulation (EEC) No 1408/71 in part III,

- consolidates the amendments resulting from the acts listed in I adopted after the last updating effected by Council Regulation (EEC) No 2001/83 of 2 June 1983 (OJ N° L 230, 22. 8. 1983 p. 6; Spanish text: DO Edicíon especial, 1985 (05.03 p. 53); Portuguese text: JO Edição Especial, 1985 (05.03 p. 53).

The indications in brackets beside certain provisions correspond to the numbering given in I and refer to the last amendment of Regulation (EEC) No 1408/71.

This edition has no legal force.

I AMENDING ACTS

A. Acts concerning the accession of Spain and Portugal (OJ N° L 302, 15. 11. 1985, p. 23):

1. Council Regulation (EEC) No 1661/85 of 13 June 1985 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 160, 20. 6. 1985, p. 1; Spanish text: DO Edicíon especial, 1985 (05.V4) p. 142; Portuguese text: JO Edição Especial, 1985 (05.F4) p. 142).

2. Council Regulation (EEC) No 3811/86 of 11 December 1986 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 355, 16. 12. 1986, p. 5).

3. Council Regulation (EEC) No 1305/89 of 11 May 1989 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 131, 13. 5. 1989, p. 1.).

4. Council Regulation (EEC) No 2332/89 of 18 July 1989 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 224, 2. 8. 1989, p. 1.).

5. Commission Regulation (EEC) No 3427/89 of 30 October 1989 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 331, 16. 11. 1989, p. 1).

6. Council Regulation (EEC) No 2195 of 25 June 1991 amending Regulations (EEC) N° 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 206, 29. 7. 1991, p. 2).

7. Council Regulation (EEC) No 1247/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ N° L 136, 19. 5. 1992, p. 1.)

8. Council Regulation (EEC) No 1248/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ N° L 136, 19. 5. 1992, p. 7.).

9. Council Regulation (EEC) No 1249/92 of 30 April 1992 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (OJ N° L 136, 19. 5. 1992, p. 28).

II Council Regulation (EEC) N° 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (5) (6) (7) (8)

TABLE OF CONTENTS

Page

TITLE I:

GENERAL PROVISIONS (Articles 1 to 12) .

5

TITLE II:

DETERMINATION OF THE LEGISLATION APPLICABLE (Articles 13 to 17 (a)) 10

TITLE III:

SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OF BENEFITS .

13

Chapter 1:

Sickness and maternity

Section 1:

Common provisions (Article 18).

13

Section 2:

Employed or self-employed persons and members of their families (Articles 19 to 24) 13

Section 3:

Unemployed persons and members of their families (Article 25).

15

Section 4:

Pension claimants and members of their families (Article 26).

16

Section 5:

Pensioners and members of their families (Articles 27 to 34).

16

Section 6:

Miscellaneous provisions (Article 35).

18

Section 7:

Reimbursement between institutions (Article 36).

18

Chapter 2:

Invalidity

Section 1:

Employed or self-employed persons subject only to legislations under which the amount of invalidity benefits is independent of the duration of periods of insurance (Articles 37 to 39).

18

Section 2:

Employed or self-employed persons subject either only to legislations under which the amount of invalidity benefit depends on the duration of periods of insurance or residence or to legislations of this type and of the type referred to in Section 1 (Article 40).

20

Section 3:

Aggravation of invalidity (Article 41).

20

Section 4:

Resumption of provision of benefits after suspension or withdrawal - Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 39 (Articles 42 and 43).

21

Chapter 3:

Old age and death (pensions) (Articles 44 to 51) .

21

Chapter 4:

Accidents at work and occupational diseases

Section 1:

Right to benefits (Articles 52 to 59).

26

Section 2:

Aggravation of an occupational disease for which the benefit has been awarded (Article 60).

28

Section 3:

Miscellaneous provisions (Articles 61 and 62).

29

Section 4:

Reimbursements between institutions (Article 63).

30

Chapter 5:

Death grants (Articles 64 to 66) .

30

Chapter 6:

Unemployment benefits

Section 1:

Common provisions (Articles 67 and 68).

30

Section 2:

Unemployed persons going to a Member State other than the competent State (Articles 69 and 70).

31

Section 3:

Unemployed persons who, during their last employment, were residing in a Member State other than the competent State (Article 71).

32

Chapter 7:

Family benefits (Articles 72 to 76) .

32

Chapter 8:

Benefits for dependent children of pensioners and for orphans (Articles 77 to 79) .

33

TITLE IV:

ADMINISTRATIVE COMMISSION ON SOCIAL SECURITY FOR MIGRANT WORKERS (Articles 80 and 81) .

34

TITLE V:

ADVISORY COMMITTEE ON SOCIAL SECURITY FOR MIGRANT WORKERS (Articles 82 and 83) .

35

TITLE VI:

MISCELLANEOUS PROVISIONS (Articles 84 to 93) .

36

TITLE VII:

TRANSITIONAL AND FINAL PROVISIONS (Articles 94 to 100) .

38

ANNEXES

Annex I:

Persons covered by the Regulation.

41

Annex II:

Special schemes for self-employed persons excluded from the scope of the Regulation pursuant to the fourth subparagraph of Article 1 (j) - Special childbirth allowances excluded from the scope of the Regulation pursuant to Article 1 (u) - Special non-contributory benefits within the meaning of Article 4 (2b) which do not fall within the scope of the Regulation.

44

Annex IIa:

Article 10a of the Regulation.

91

Annex III:

Provisions of social security conventions remaining applicable notwithstanding Article 6 of the Regulation - Provisions of social security conventions which do not apply to all persons to whom the Regulation applies.

50

Annex IV:

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 - Special schemes for self-employed persons within the meaning of Articles 38 (3) and 45 (3) of Regulation No 1408/71 - Cases referred to in Article 46 (1) (b) of the Regulation where the calculation of benefit in accordance with Article 46 (2) of the Regulation may be waived - Benefits and agreements referred to in Article 46b (2) of the Regulation.

59

Annex V:

Concordance between the legislations of Member States on conditions relating to the degree of invalidity.

63

Annex VI:

Special procedures for applying the legislations of certain Member States.

67

Annex VII:

Instances in which a person shall be simultaneously subject to the legislation of two Member States.

82

TITLE I

GENERAL PROVISIONS

Article 1

(7)

Definitions

For the purpose of this Regulation:

(a) 'employed person` and 'self-employed person` mean respectively:

(i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed or self-employed persons;

(ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population, if such person:

- can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or,

- failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or, where no such scheme exists in the Member State concerned, complies with the definition given in Annex I;

(iii) any person who is compulsorily insured for several of the contingencies covered by the branches dealt with in this Regulation, under a standard social security scheme for the whole rural population in accordance with the criteria laid down in Annex I;

(iv) any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this Regulation, under a social security scheme of a Member State for employed or self-employed persons or for all residents or for certain categories of residents:

- if such person carries out an acitivity as an employed or self-employed person, or

- if such person has previously been compulsorily insured for the same contingency under a scheme for employed or self-employed persons of the same Member State;

(b) 'frontier worker` means any employed or self-employed person who pursues his occupation in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posed elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached, or who engages in the provision of services elsewhere in the territory of the same or another Member State, shall retain the status of frontier worker for a period not exceeding four months, even if he is prevented, during that period, from returning daily or at least once a week to the place where he resides;

(c) 'seasonal worker' means any employed person who goes to the territory of a Member State other than the one in which he is resident to do work there of a seasonal nature for an undertaking or an employer of that State for a period which may on no acount exceed eight month, and who stays in the territory of the said State for the duration of this work; work of a seasonal nature shall be taken to mean work which, being dependent on the succession of the season, automatically recurs each year;

(d) 'refugee` shall have the meaning assigned to it in Article 1 of the Convention of the Status of Refugees, signed at Geneva on 28 July 1951;

(e) 'stateless person' shall have the meaning assigned to it in Article 1 of the Convention on the Status of Stateless Persons, signed in New York on 28 September 1954;

(f) (i) 'member of the family` means any person defined or recognized as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 22 (1) (a) and 31, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. Where the legislation of a Member State on sickness or maternity benefits in kind does not enable members of the family to be distinguished from the other persons to whom it applies, the term 'member of the family` shall have the meaning given to it in Annex 1;

(ii) where, however, the benefits concerned are benefits for disabled persons granted under the legislation of a Member State to all nationals of that State who fulfil the prescribed conditions, the term 'member of the family` means at least the spouse of an employed or self-employed person and the children of such person who are either minors or dependent upon such person;

(g) 'survivor` means any person defined or recognized as such by the legislation under which the benefits are granted; where, however, the said legislation regards as a survivor only a person who was living under the same roof as the deceased, this condition shall be considered satisfied if such person was mainly dependent on the deceased;

(h) 'residence` means habitual residence;

(i) 'stay` means temporary residence;

(j) 'legislation` means in respect of each Member State statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4 (1) and (2) or those special non-contributory benefits covered by Article 4 (2a).

The term excludes provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope. However, in so far as such provisions

(i) serve to put into effect compulsory insurance imposed by the laws and regulations referred to in the preceding subparagraph; or

(ii) set up a scheme administered by the same institution as that which administers the schemes set up by the laws and regulations referred to in the preceding subparagraph.

The limitation on the term may at any time be lifted by a declaration of the Member State concerned specifying the schemes of such a kind to which this Regulation applies. Such a declaration shall be notified and published in accordance with the provisions of Article 97.

The provisions of the preceding subparagraph shall not have effect of exempting from the application of this Regulation the schemes to which Regulation No 3 applied.

The term 'legislation` also excludes provisions governing special schemes for self-employed persons the creation of which is left to the initiatives of those concerned or which apply only to a part of the territory of the Member State concerned, irrespective of whether or not the authorities decided to make them compulsory or extend their scope. The special schemes in question are specified in Annex II;

(k) 'social security convention` means any bilateral or multilateral instrument which binds or will bind two or more Member States exclusively, and any other multilateral instrument which binds or will bind at least two Member States and one or more other States in the field of social security, for all or part of the branches and schemes set out in Article 4 (1) and (2), together with agreements, of whatever kind, concluded pursuant to the said instruments;

(l) 'competent authority` means, in respect of each Member State, the Minister, Ministers or other equivalent authority responsible for social security schemes throughout or in any part of the territory of the State in question;

(m) 'Administrative Commission` means the commission referred to in Article 80;

(n) 'institution` means, in respect of each Member State the body or authority responsible for administering all or part of the legislation;

(o) 'competent institution` means:

(i) the institution with which the person concerned is insured at the time of the application for benefit;

or

(ii) the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of this family were resident in the territory of the Member State in which the institution is situated; or

(iii) the institution designated by the competent authority of the Member State concerned; or

(iv) in the case of a scheme relating to an employer's liability in respect of the benefits set out in Article 4 (1), either the employer or the insurer involved or, in default thereof, a body or authority designated by the competent authority of the Member State concerned;

(p) 'institution of the place of residence` and 'institution of the place of stay` mean respectively the institution which is competent to provide benefits in the place where the person concerned resides and the institution which is competent to provide benefits in the place where the person concerned resides and the institution which is competent to provide benefits in the place where the person concerned is staying, under the legislation administered by that institution or, where no such institution exists, the institution designated by the competent authority of the Member State in question;

(q) 'competent State` means the Member State in whose territory the competent institution is situated;

(r) 'periods of insurance` means periods of contribution or period of employment or self-employment as defined or recognized as periods of insurance by the legislation under which they were completed or considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance;

(s) 'periods of employment` and 'periods of self-employment` mean periods so defined or recognized by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment or of self-employment;

(sa) 'periods of residence` means periods as defined or recognized as such by the legislation under which they were completed or considered as completed;

(t) 'benefits` and 'pensions` mean all benefits and pensions, including all elements thereof payable out of public funds, revalorization increases and supplementary allowances, subject to the provisions of Title III, as also lump-sum benefits which may be paid in lieu of pensions, and payments made by way of reimbursement of contributions;

(u) (i) 'family benefits` means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4 (1) (h), excluding the special childbirth allowances mentioned in Annex II;

(ii) 'family allowances` means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family;

(v) 'death grants` means any once-for-all payment in the event of death exclusive of the lump-sum benefits referred to in subparagraph (t).

Article 2

Persons covered

1. This Regulation shall apply to employed or self-employed persons who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors.

2. In addition, this Regulation shall apply to the survivors of employed or self-employed persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such employed or self-employed persons, where their survivors are nationals of one of the Member States, or stateless persons or refugees residing within the territory of one of the Member States.

3. This Regulation shall apply to civil servants and to persons who, in accordance with the legislation applicable, are treated as such, where they are or have been subject to the legislation of a Member State to which this Regulation applies.

Article 3

Equality of treatment

1. Subject to the special provisions of this Regulation, persons resident in the territory of one of the Member States to whom this Regulation applies shall be subject to the same obligations and enjoy the same benefits under the legislation of any Member State as the nationals of that State.

2. The provisions of paragraph 1 shall apply to the right to elect members of the organs of social security institutions or to participate in their nomination, but shall not affect the legislative provisions of any Member State relating to eligibility or methods of nomination of persons concerned to those organs.

3. Save as provided in Annex III, the provisions of social security conventions which remain in force pursuant to Article 7 (2) (c) and the provisions of conventions concluded pursuant to Article 8 (1), shall apply to all persons to whom this Regulation applies.

Article 4

(7)

Matters covered

1. This Regulation shall apply to all legislation concerning the following branches of social security:

(a) sickness and maternity benefits;

(b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity;

(c) old-age benefits;

(d) survivor's benefits;

(e) benefits in respect of accidents at work and occupational diseases;

(f) death grants;

(g) unemployment benefits;

(h) family benefits.

2. This Regulation shall apply to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer or shipowner in respect of the benefits referred to in paragraph 1.

2a. This Regulation shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:

(a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h),

or

(b) solely as specific protection for the disabled.

2b. This Regulation shall not apply to the provisions in the legislation of a Member State concerning special non-contributory benefits, referred to in Annex II, Section III, the validity of which is confined to part of its territory.

3. The provisions of Title III of this Regulation shall not, however, affect the legislative provisions of any Member State concerning a shipowner's liability.

4. This Regulation shall not apply to social and medical assistance, to benefit schemes for victims of war or its consequences, or to special schemes for civil servants and persons treated as such.

Article 5

(7)

Declarations by the Member States on the scope of this Regulation

The Member States shall specify the legislation and schemes referred to in Article 4 (1) and (2), the special non-contributory benefits referred to in Article 4 (2a), the minimum benefits referred to in Article 50 and the benefits referred to in Articles 77 and 78 in declarations to be notified and published in accordance with Article 97.

Article 6

Social security conventions replaced by this Regulation

Subject to the provisions of Articles 7, 8 and 46 (4), this Regulation shall, as regards persons and matters which it covers, replace the provisions of any social security convention binding either:

(a) two or more Member States exclusively;

or

(b) at least two Member States and one or more other States, where settlement of the cases concerned does not involve any institution of one of the latter States.

Article 7

(4)

International provisions not affected by this Regulation

1. This Regulation shall not affect obligations arising from:

(a) any convention adopted by the International Labour Conference which, after ratification by one or more Member States, has entered into force;

(b) the European Interim Agreements on Social Security of 11 December 1953 concluded between the Member States of the Council of Europe.

2. The provisions of Article 6 notwithstanding, the following shall continue to apply:

(a) the provisions of the Agreements of 27 July 1950 and 30 November 1979 concerning social security for Rhine boatmen;

(b) the provisions of the European Convention of 9 July 1956 concerning social security for workers in international transport;

(c) the provisions of the social security conventions listed in Annex III.

Article 8

Conclusion of conventions between Member States

1. Two or more Member States may, as need arises, conclude conventions with each other based on the principles and in the spirit of this Regulation.

2. Each Member State shall notify, in accordance with the provisions of Article 97 (1), any convention concluded with another Member State under the provisions of paragraph 1.

Article 9

Admission to voluntary or optional continued insurance

1. The provisions of the legislation of any Member State which make admission to voluntary or optional continued insurance conditional upon residence in the territory of that State shall not apply to persons resident in the territory of another Member State, provided that at some time in their past working life they were subject to the legislation of the first State as employed or as self-employed persons.

2. Where, under the legislation of a Member State, admission to voluntary or optional continued insurance is conditional upon completion of periods of insurance, the periods of insurance or residence completed under the legislation of another Member State shall be taken into account, to the extent required, as if they were completed under the legislation of the first State.

Article 9a

(4)

Prolongation of the reference period

Where, under the legislation of a Member State recognition of entitlement to a benefit is conditional upon completion of a minimum period of insurance during a specific period preceding the contingency insured against (reference period) and where the aforementioned legislation provides that the periods during which the benefits have been granted under the legislation of that Member State or periods devoted to the upbringing of children in the territory of that Member State shall give rise to prolongation of the reference period, periods during which invalidity pensions or old-age pensions or sickness benefits, unemployment benefits or benefits for accidents at work (except for pensions) have been awarded under the legislation of another Member State and periods devoted to the upbringing of children in the territory of another Member State shall likewise give rise to prolongation of the aforesaid reference period.

Article 10

Waiving of residence clauses - Effect of compulsory insurance on reimbursement of contributions

1. Save as otherwise provided in this Regulation invalidity, old-age or survivors' cash benefits, pensions for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.

The preceding subparagraph shall also apply to lump-sum benefits granted in cases of remarriage of a surviving spouse who was entitled to a survivor's pension.

2. Where under the legislation of a Member State reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition shall not be considered satisfied as long as the person concerned is subject to compulsory insurance as an employed or self-employed person under the legislation of another Member State.

Article 10a

(7)

Special non-contributory benefits

1. Nothwithstanding the provisions of Article 10 and Title III, persons to whom this Regulation applies shall be granted the special contributory cash benefits referred to in Article 4 (2a) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IIa. Such benefits shall be granted by and at the expense of the institution of the place of residence.

2. The institution of a Member State under whose legislation entitlement to benefits covered by paragraph 1 is subject to the completion of periods of employment, self-employment or residence shall regard, to the extend necessary, periods of employment, self-employment or residence completed in the territory of any other Member State as periods completed in the territory of the first Member State.

3. Where entitlement to a benefit covered by paragraph 1 but granted in the form of a supplement is subject, under the legislation of a Member State, to receipt of a benefit covered by Article 4 (1) (a) to (h), and no such benefit is due under that legislation, any corresponding benefit granted under the legislation of any other Member State shall be treated as a benefit granted under the legislation of the first Member State for the purposes of entitlement to the supplement.

4. Where the granting of a disability or invalidity benefit covered by paragraph 1 is subject, under the legislation of a Member State to the condition that the disability or invalidity should be diagnosed for the first time in the territory of that Member State, this condition shall be deemed to be fulfilled where such diagnosis is made for the first time in the territory of another Member State.

Article 11

Revalorization of benefits

Rules for revalorization provided by the legislation of a Member State shall apply to benefits due under that legislation taking into account the provisions of this Regulation.

Article 12

(6) (8)

Prevention of overlapping of benefits

1. This Regulation can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance. However, this provision shall not apply to benefits in respect of invalidity, old age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States, in accordance with the provisions of Article 41, 43 (2) and (3), 46, 50 and 51 or Article 60 (1) (b).

2. Save as otherwise provided in this Regulation, the provisions of the legislations of a Member State governing the reduction, suspension or withdrawal of benefits in cases of overlapping with other social security benefits or any other form of income may be invoked even where such benefits were acquired under the legislation of another Member State or where such income was acquired in the territory of another Member State.

3. The provisions of the legislation of a Member State for reduction, suspension or withdrawal of benefit in the case of a person in receipt of invalidity benefits or anticipatory old-age benefits pursuing a professional or trade activity may be invoked against such person even though he is pursuing his activity in the territory of another Member State.

4. An invalidity pension payable under Netherlands legislation shall, in a case where the Netherlands institution is bound under the provisions of Article 57 (5) or 60 (2) (b) to contribute also to the cost of benefits for occupational disease granted under the legislation of another Member State be reduced by the amount payable to the institution of the other Member State which is responsible for granting the benefits for occupational disease.

TITLE II

DETERMINATION OF THE LEGISLATION APPLICABLE

Article 13

(6)

General rules

1. Subject to Article 4 (c), persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2. Subject to Articles 14 to 17:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

(b) a person who is self-employed in the territory of one Member State shall be subjected to the legislation of that State even if he resides in the territory of another Member State;

(c) a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of that State;

(d) civil servants and persons treated as such shall be subject to the legislation of the Member State to which the administration employing them is subject;

(e) a person called up or recalled for service in the armed forces, or for civilian service, of a Member State 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. The employed or self-employed person called up or recalled for service in the armed forces or for civilian service shall retain the status of employed or self-employed person;

(f) a person to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the aforegoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 14 to 17 shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.

Article 14

Special rules applicable to persons, other than mariners, engaged in paid employment

Article 13 (2) (a) shall apply subject to the following exceptions and circumstances:

1. (a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting.

(b) If the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned is posted or the body designated by that authority gives its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months.

2. A person normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows:

(a) A person who is a member of the travelling or flying personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office or place of business in the territory of a Member State shall be subject to the legislation of the latter State, with the following restrictions:

(i) where the said undertaking has a branch or permanent representation in the territory of a Member State other than that in which it has its registered office or place of business, a person employed by such branch or permanent representation shall be subject to the legislation of the Member State in whose territory such branch or permanent representation is situated;

(ii) where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or place of business or branch or permanent representation in that territory.

(b) A person other than that referred to in (a) shall be subject:

(i) to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered offices or places of business in the territory of different Member States;

(ii) to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity.

3. A person who is employed in the territory of one Member State by an undertaking which has its registered office or place of business in the territory of another Member State and which straddles the common frontier of these States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office or place of business.

Article 14a

Special rules applicable to persons, other than mariners, who are self-employed

Article 13 (2) (b) shall apply subject to the following exceptions and circumstances:

1. (a) A person normally self-employed in the territory of a Member State and who performs work in the territory of another Member State shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of the work does not exceed 12 months.

(b) If the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned has entered to perform the work in question or the body appointed by that authority gives its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months.

2. A person normally self-employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State. If he does not pursue any activity in the territory of the Member State in which he resides, he shall be subject to the legislation of the Member State in whose territory he pursues his main activity. The criteria used to determine the principal activity are laid down in the Regulation referred to in Article 98.

3. A person who is self-employed in an undertaking which has its registered office or place of business in the territory of one Member State and which straddles the common frontier of two Member States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office or place of business.

4. If the legislation to which a person should be subject in accordance with paragraphs 2 or 3 does not enable that person, even on a voluntary basis, to join a pension scheme, the person concerned shall be subject to the legislation of the other Member State which would apply apart from these particular provisions, or should the legislations of two or more Member States apply in this way, he shall be subject to the legislation decided on by common agreement amongst the Member States concerned or their competent authorities.

Article 14b

Special rules applicable to mariners

Article 13 (2) (c) shall apply subject to the following exceptions and circumstances:

1. A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State who is posted by that undertaking on board a vessel flying the flag of another Member State to perform work there for that undertaking shall, subject to the conditions provided in Article 14 (1), continue to be subject to the legislation of the first Member State.

2. A person normally self-employed, either in the territory of a Member State or on board a vessel flying the flag of a Member State and who performs work on his own account on board a vessel flying the flag of another Member State shall, subject to the conditions provided in Article 14a (1), continue to be subject to the legislation of the first Member State.

3. A person who, while not being normally employed at sea, performs work in the territorial waters or in a port of a Member State on a vessel flying the flag of another Member State within those territorial waters or in that port, but is not a member of the crew of the vessel, shall be subject to the legislation of the first Member State.

4. A person employed on board a vessel flying the flag of a Member State and remunerated for such employment by an undertaking or a person whose registered office or place of business is in the territory of another Member State shall be subject to the legislation of the latter State if he is resident in the territory of that State; the undertaking or person paying the remuneration shall be considered as the employer for the purposes of the said legislation.

Article 14c

(2)

Special rules applicable to persons who are simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State

A person who is simultaneously employed in the territory of one Member State and self-employed in the territory of another Member State shall be subject:

(a) save as otherwise provided in subparagraph (b) to the legislation of the Member State in the territory of which he is engaged in paid employment or, where he pursues such an activity in the territory of two or more Member States, to the legislation determined in accordance with Article 14 (2) or (3);

(b) in the cases mentioned in Annex VII:

- to the legislation of the Member State in the territory of which he is engaged in paid employment, that legislation having been determined in accordance with the provisions of Article 14 (2) or (3), where he pursues such an activity in the territory of two or more Member States,

and

- to the legislation of the Member State in the territory of which he is self-employed, that legislation having been determined in accordance with Article 14a (2), (3) or (4), where he pursues such an activity in the territory of two or more Member States.

Article 14d

(2)

Miscellaneous provisions

1. The person referred to in Article 14 (2) and (3), 14a (2), (3) and (4) and 14c (a) sahll be treated, for the purposes of application of the legislation laid down in accordance with these provisions, as if he pursued all his professional activity or activities in the territory of the Member State concerned.

2. The person referred to in Article 14c (b) shall be treated, for the purposes of determining the rates of contributions to be charged to self-employed workers under the legislation of the Member State in whose territory he is self-employed, as if he pursued his paid employment in the territory of the Member State concerned.

3. The provisions of the legislation of a Member State under which a pensioner who is pursuing a professional or trade activity is not subject to compulsory insurance in respect of such activity shall also apply to a pensioner whose pension was acquired under the legislation of another Member State, unless the person concerned expressly asks to be so subject by applying to the institution designated by the competent authority of the first Member State and named in Annex 10 to the Regulation referred to in Article 98.

Article 15

Rules concerning voluntary insurance or optional continued insurance

1. Articles 13 to 14d shall not apply to voluntary insurance or to optional insurance unless, in respect of one of the branches referred to in Article 4, there exists in any Member State only a voluntary scheme of insurance.

2. Where application of the legislations of two or more Member States entails overlapping of insurance:

- under a compulsory insurance scheme and one or more voluntary or optional continued insurance schemes, the person concerned shall be subject exclusively to the compulsory insurance scheme,

- under two or more voluntary or optional continued insurance schemes, the person concerned may join only the voluntary or optional continued insurance scheme for which he has opted.

3. However, in respect of invalidity, old age and death (pensions), the person concerned may join the voluntary or optional continued insurance scheme of a Member State, even if he is compulsorily subject to the legislation of another Member State, to the extent that such overlapping is explicitly or implicitly admitted in the first Member State.

Article 16

Special rules regarding persons employed by diplomatic missions and consular posts, and auxiliary staff of the European Communities

1. The provisions of Article 13 (2) (a) shall apply to persons employed by diplomatic missions and consular posts and to the private domestic staff of agents of such missions or posts.

2. However, employed persons covered by paragraph 1 who are nationals of the Member State which is the accrediting or sending State may opt to be subject to the legislation of that State. Such right of option may be renewed at the end of each calendar year and shall not have retrospective effect.

3. Auxiliary staff of the European Communities may opt to be subject to the legislation of the Member State in whose territory they are employed, to the legislation of the Member State to which they were last subject or to the legislation of the Member State whose nationals they are, in respect of provisions other than those relating to family allowances, the granting of which is governed by the conditions of employment applicable to such staff. This right of option, which may be exercised once only, shall take effect from the date of entry into employment.

Article 17

(6)

Exceptions to Articles 13 to 16

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

Article 17a

(6)

Special rules concerning recipients of pensions due under the legislation of one or more Member State

The recipient of a pension due under the legislation of a Member State or of pensions due under the legislation of several Member States who resides in the territory of another Member State may at his request be exempted from the legislation of the latter State provided that he is not subject to that legislation because of the pursuit of an occupation.

TITLE III

SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OF BENEFITS

CHAPTER I

SICKNESS AND MATERNITY

Section 1

Common provisions

Article

18

Aggregation of periods of insurance, employment or residence

1. The competent institution of a Member State whose legislation makes the aquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence shall, to the extent necessary, take account of periods of insurance, employment or residence completed under the legislation of any other Member State as if they were periods completed under the legislation which it administers.

2. The provisions of paragraph 1 shall apply to seasonal workers, even in respect of periods prior to any break in insurance exceeding the period allowed by the legislation of the competent State, provided, however, that the person concerned has not ceased to be insured for a period exceeding four months.

Section 2

Employed or self-employed persons and members of their families

Article

19

Residence in a Member State other than the competent State - General rules

1. An employed or self-employed person residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, shall receive in the State in which he is resident:

(a) benefits in kind provided on behalf of the competent institution by the institution of the place of residence in accordance with the provisions of the legislation administered by that institution as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

2. The provisions of paragraph 1 shall apply by analogy to members of the family who reside in the territory of a Member State other than the competent State in so far as they are not entitled to such benefits under the legislation of the State in whose territory they reside.

Where the members of the family reside in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to condition of insurance or employment, benefits in kind which they receive shall be considered as being on behalf of the institution with which the employed or self-employed person is insured, unless the spouse or the person looking after the children pursues a professional or trade activity in the territory of the said Member State.

Article

20

Frontier workers and members of their families - Special rules

A frontier worker may also obtain benefits in the territory of the competent State. Such benefits shall be provided by the competent institution in accordance with the provisions of the legislation of that State, as though the person concerned were resident in that State. Members of his family may receive benefits under the same conditions; however, receipt of such benefits shall, except in urgent cases, be conditional upon an agreement between the States concerned or between the competent authorities of those States or, in its absence, on prior authorization by the competent institution.

Article

21

Stay in or transfer of residence to the competent State

1. The employed or self-employed person referred to in Article 19 (1) who is staying in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State as though he were resident there, even if he has already received benefits for the same case of sickness or maternity before his stay.

2. Paragraph 1 shall apply by analogy to the members of the family referred to in Article 19 (2).

However, where the latter reside in the territory of a Member State other than the one in whose territory the employed or self-employed person resides, benefits in kind shall be provided by the institution of the place of stay on behalf of the institution of the place of residence of the persons concerned.

3. Paragraphs 1 and 2 shall not apply to frontier workers and the members of their families.

4. An employed or self-employed person and members of his family referred to in Article 19 who transfer their residence to the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State even if they have already received benefits for the same case of sickness or maternity before transferring their residence.

Article

22

Stay outside the competent State - Return to or transfer of residence to another Member State during sickness or maternity - Need to go to another Member State in order to receive appropriate treatment

1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:

(a) whose condition necessitates immediate benefits during a stay in the territory of another Member State;

or

(b) who, having become entitled to benefits chargeable to the competent institution, is authorized by that institution to return to the territory of the Member State where he resides, or to transfer his residence to the territory of another Member State;

or

(c) who is authorized by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition,

shall be entitled:

(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the provisions of the legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State;

(ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay or residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

2. The authorization required under paragraph 1 (b) may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or the receipt of medical treatment.

The authorization required under paragraph 1 (c) may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.

3. The provisions of paragraph 1 and 2 shall apply by analogy to members of the family of an employed or self-employed person.

However, for the purpose of applying paragraph 1 (a) and (c) (i) to the members of the family referred to in Article 19 (2) who reside in the territory of a Member State other than the one in whose territory the employed or self-employed person resides:

(a) benefits in kind shall be provided on behalf of the institution of the Member State in whose territory the members of the family are residing by the institution of the place of stay in accordance with the provisions of the legislation which it administers as if the employed or self-employed person were insured there. The period during which benefits are provided shall, however, be that laid down under the legislation of the Member State in whose territory the members of the family are residing;

(b) the authorization required under paragraph 1 (c) shall be issued by the institution of the Member State in whose territory the members of the family are residing.

4. The fact that the provisions of paragraph 1 apply to an employed or self-employed person shall not affect the right to benefit of members of his family.

Article

23

Calculation of cash benefits

1. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on average earnings or on average contributions, shall determine such average earnings or contributions exclusively by reference to earnings or contributions completed under the said legislation.

2. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings, shall take account exclusively of the standard earnings or, where appropriate, of the average of standard earnings for the periods completed under the said legislation.

3. The competent institution of a Member State under whose legislation the amount of cash benefits varies with the number of members of the family, shall also take into account the members of the family of the person concerned who are resident in the territory of another Member State as if they were resident in the territory of the competent State.

Article

24

Substantial benefits in kind

1. Where the right of an employed or self-employed person or a member of his family to a prosthesis, a major appliance or other substantial benefits in kind has been recognized by the institution of a Member State before he becomes insured with the institution of another Member State, the said employed or self-employed person shall receive such benefits at the expense of the first institution, even if they are granted after he becomes insured with the second institution.

2. The Administrative Commission shall draw up the list of benefits to which the provisions of paragraph 1 apply.

Section 3

Unemployed persons and members of their families

Article

25

1. An unemployed person who was formerly employed or self-employed, to whom the provisions of Article 69 (1) or the second sentence of Article 71 (1) (b) (ii) apply, and who satisfies the conditions of the legislation of the competent State for entitlement to benefits in kind and in cash, taking account where appropriate of the provisions of Article 18, shall reveive for the period provided under Article 69 (1) (c):

(a) benefits in kind provided on behalf of the competent institution by the institution of the Member State in which he seeks employment in accordance with the provisions of the legislation which the latter institution administers, as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution of the Member State in which the unemployed person seeks employment, benefits may be provided by the latter institution on behalf of the former institution in accordance with the provisions of the legislation of the competent State. Unemployment benefits under Article 69 (1) shall not be granted for the period during which cash benefits are received.

2. A totally unemployed person who was formerly employed and to whom the provisions of Article 71 (1) (a) (ii) or the first sentence of Article 71 (1) (b) (ii) apply, shall receive benefits in kind and in cash in accordance with the provisions of the legislation of the Member State in whose territory he resides, as though he had been subject to that legislation during his last employment, taking account where appropriate of the provisions of Article 18; the cost of such benefits shall be met by the institution of the country of residence.

3. Where an unemployed person satisfies the conditions of the legislation of the Member State which is responsible for the cost of unemployment benefits for entitlement to sickness and maternity benefits, taking account where appropriate of the provisions of Article 18, the members of his family shall receive these benefits, irrespective of the Member State in whose territory they reside or are staying. Such benefits shall be provided:

(i) with regard to the benefits in kind, by the institution of the place of residence or stay in accordance with the provisions of the legislation which it administers, on behalf of the competent institution of the Member State which is responsible for the cost of unemployment benefits;

(ii) with regard to cash benefits, by the competent institution of the Member State which is responsible for the cost of unemployment benefits, in accordance with the legislation which it administers.

4. Without prejudice to any provisions of the legislation of a Member State which permit an extension of the period during which sickness benefits may be granted, the period provided for in paragraph 1 may, in cases of force majeure, be extended by the competent institution within the limit fixed by the legislation administered by that institution.

Section 4

Pension claimants and members of their families

Article

26

Right to benefits in kind in cases of cessation of the right to benefits from the institution which was last competent

1. An employed or self-employed person, members of his family or his survivors who, during the investigation of a claim for pension, cease to be entitled to benefits in kind under the legislation of the Member State last competent, shall nevertheless receive such benefits under the following conditions: benefits in kind shall be provided in accordance with the provisions of the legislation of the Member State in whose territory the person or persons concerned reside, provided that they are entitled to such benefits under that legislation or would be entitled to them under the legislation of another Member State if they were residing in the territory of that State, taking account where appropriate of the provisions of Article 18.

2. A pension claimant who is entitled to benefits in kind under the legislation of a Member State which obliges the person concerned to pay sickness insurance contributions himself during the investigation of his pension claim shall cease to be entitled to benefits in kind at the end of the second month for which he has not paid the contributions due.

3. Benefits in kind provided in accordance with the provisions of paragraph 1 shall be chargeable to the institution which has collected contributions in accordance with the provisions of paragraph 2; where no contributions are payable under the provisions of paragraph 2, the institution responsible for the cost of the benefits in kind after awarding the pension in accordance with the provisions of Article 28 shall refund the amount of the benefits provided to the institution of the place of residence.

Section 5

Pensioners and members of their families

Article

27

Pensions payable under the legislation of several States where there is a right to benefits in the country of residence

A pensioner who is entitled to draw pensions under the legislation of two or more Member States, of which one is that of the Member State in whose territory he resides, and who is entitled to benefits under the legislation of the latter Member State, taking account where appropriate of the provisions of Article 18 and Annex VI, shall, with the members of his family, receive such benefits from the institution of the place of residence and at the expense of that institution as though the person concerned were a pensioner whose pension was payable solely under the legislation of the latter Member State.

Article

28

Pensions payable under the legislation of one or more States, in cases where there is no right to benefits in the country of residence

1. A pensioner who is entitled to a pension under the legislation of one Member State or to pensions under the legislation of two or more Member States and who is not entitled to benefits under the legislation of the Member State in whose territory he resides shall nevertheless receive such benefits for himself and for members of his family, in so far as he would, taking account where appropriate of the provisions of Article 18 and Annex VI, be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of pensions if he were resident in the territory of such State. The benefits shall be provided under the following conditions:

(a) benefits in kind shall be provided on behalf of the institution referred to in paragraph 2 by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the State in whose territory he resides and were entitled to such benefits;

(b) cash benefits shall, where appropriate, be provided by the competent institution as determined by the rules of paragraph 2, in accordance with the legislation which it administers. However, upon agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

2. In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution as determined according to the following rules:

(a) where the pensioner is entitled to the said benefits under the legislation of a single Member State, the cost shall be borne by the competent institution of that State;

(b) where the pensioner is entitled to the said benefits under the legislations of two or more Member States, the cost thereof shall be borne by the competent institution of the Member State to whose legislation the pensioner has been subject for the longest period of time; should the application of this rule result in several institutions being responsible for the cost of benefits the cost shall be borne by the institution administering the legislation to which the pensioner was last subject.

Article

28a

Pensions payable under the legislation of one or more of the Member States other than the country of residence where there is a right to benefits in the latter country

Where the pensioner entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, resides in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, nor is any pension payable, the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of one of the Member States competent in respect of pensions, determined according to the rules laid down in Article 28 (2), to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institutions if they resided in the territory of the Member State where that institution is situated.

Article

29

Residence of members of the family in a State other than the one in which the pensioner resides - Transfer of residence to the State where the pensioner resides

1. Members of the family of a pensioner entitled to a pension under the legislation of one Member State or to pensions under the legislation of two or more Member States who reside in the territory of a Member State other than the one in which the pensioner resides shall, where he is entitled to benefits under the legislation of one Member State, receive benefits as though the pensioner were resident in the same territory as themselves. Benefits shall be provided under the following conditions:

(a) benefits in kind shall be provided by the institution of the place of residence of the members of the family in accordance with the provisions of the legislation which that institution administers, the cost being borne by the institution of the pensioner's place of residence;

(b) cash benefits shall, where appropriate, be provided by the competent institution as determined by the provisions of Article 27 or 28 (2), in accordance with the provisions of the legislation which it administers. However, upon agreement between the competent institution and the institution of the place of residence of the members of the family, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

2. Members of the family referred to in paragraph 1 who transfer their residence to the territory of the Member State where the pensioner resides, shall receive:

(a) benefits in kind under the provisions of the legislation of that State, even if they have already received benefits for the same case of sickness or maternity before transferring their residence;

(b) cash benefits provided where appropriate by the competent institution determined by the provisions of Article 27 or 28 (2), in accordance with the legislation which it administers. However, upon agreement between the competent institution and the institution of the place of residence of the pensioner, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

Article

30

Substantial benefits in kind

The provisions of Article 24 shall apply by analogy to pensioners.

Article

31

Stay of the pensioner and/or members of his family in a State other than the State in which they reside

A pensioner entitled to a pension or pensions under the legislation of one Member State or to pensions under the legislation of two or more Member States who is entitled to benefits under the legislation of one of those States shall, with members of his family who are staying in the territory of a Member State other than the one in which they reside, receive:

(a) benefits in kind provided by the institution of the place of stay in accordance with the provisions of the legislation which it administers, the cost being borne by the institution of the pensioner's place of residence;

(b) cash benefits provided, where appropriate, by the competent institution as determined by the provisions of Article 27 or 28 (2), in accordance with the provisions of the legislation which it administers. However, upon agreement between the competent institution and the institution of the place of stay, these benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

Article

32

Special provisions concerning responsibility for the cost of benefits provided for former frontier workers, members of their families or their survivors

The cost of benefits which are provided under the provisions of Article 27 or 31 to a pensioner referred to in Article 27 who is a former frontier worker or the survivor of a frontier worker, as well as to the members of the family, shall, where the frontier worker was working as such for the three months immediately preceding the date on which the pension became payable or the date of his death, be divided equally between the institution of the pensioner's place of residence and that which he was last insured.

Article

33 (4)

Contributions payable by pensioners

1. The institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity shall be authorized to make such deductions, calculated in accordance with the legislation concerned, from the pension payable by such institution, to the extent that the cost of the benefits under Articles 27, 28, 28a, 29, 31 and 32 is to be borne by an institution of the said Member State.

2. Where, in the cases referred to in Article 28a, the acquisition of benefits in respect of sickness and maternity is subject to the payment of contributions or similar payments under the legislation of a Member State in whose territory the pensioner in question resides, by virtue of such residence, these contributions shall not be payable.

Article

34

General provisions

1. For the purposes of Articles 28, 28a, 29 and 31, a pensioner who is in receipt of two or more pensions due under the legislation of a single Member State shall be regarded as a pensioner entitled to draw a pension under the legislation of one Member State, within the meaning of these provisions.

2. Articles 27 to 33 shall not apply to a pensioner or to members of his family who are entitled to benefits under the legislation of a Member State as a result of pursuing a professional or trade activity. In such a case, the person concerned shall, for the purposes of the implementation of this chapter, be considered as an employed or self-employed person or as a member of an employed or self-employed person's family.

Section 6

Miscellaneous provisions

Article

35

Scheme applicable where there are a number of schemes in the country of residence or stay - Previous illness - Maximum period during which benefits are granted

1. Subject to paragraph 2, where the legislation of the country of stay or residence contains several sickness or maternity insurance schemes, the provisions applicable under Article 19, 21 (1), 22, 25, 26, 28 (1), 29 (1) or 31 shall be those of the scheme covering manual workers in the steel industry. Where, however, the said legislation includes a special scheme for workers in mines and similar undertakings, the provisions of such scheme shall apply to that category of workers and members of their families provided the institution of the place of stay or residence to which application is made is competent to administer such scheme.

2. Where the legislation of the country of stay or residence includes one or more special schemes, covering all or most occupational categories of self-employed persons, which grant benefits in kind less favourable than those granted to employed persons, the provisions applicable to the person concerned and the members of his family pursuant to Articles 19 (1) (a) and (2), 22 (1) (under (i)) and (3), 28 (1) (a) and 31 (a) shall be those of the scheme or schemes determined by the implementing Regulation referred to in Article 98:

(a) where, in the competent State, the person concerned is insured under a special scheme for self-employed persons which also grants less favourable benefits in kind than those granted to employed person,

or

(b) where a person in receipt of one or more pensions is, under the pensions legislation of the competent Member State or Member States, entitled only to the benefits in kind provided for by a special scheme for self-employed persons which also grants less favourable benefits in kind than those granted to employed persons.

3. Where, under the legislation of a Member State, the granting of benefits is conditional upon the origin of the illness, that conditions shall apply neither to employed or self-employed persons nor to the members of their families to whom this Regulation applies, regardless of the Member State in whose territory they reside.

4. Where the legislation of a Member State fixes a maximum period for the granting of benefits, the institution which administers that legislation may, where appropriate, take account of the period during which the benefits have already been provided by the institution of another Member State for the same case of sickness or maternity.

Section 7

Reimbursement between institutions

Article

36

1. Without prejudice to the provisions of Article 32, benefits in kind provided in accordance with the provisions of this chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded.

2. The refunds referred to in paragraph 1 shall be determined and made in accordance with the procedure provided for by the implementing Regulation referred to in Article 98, either on production of proof of actual expenditure or on the basis of lump-sum payments.

In the latter case, the lump-sum payments shall be such as to ensure that the refund is as close as possible to actual expenditure.

3. Two or more Member States, or the competent authorities of those States, may provide for other methods of reimbursement or may waive all reimbursement between institutions under their jurisdiction.

CHAPTER 2 (8)

INVALIDITY

Section 1

Employed persons or self-employed persons subject only to legislations under which the amount of invalidity benefits is independent of the duration of periods of insurance

Article

37 (8)

General provisions

1. An employed person or a self-employed person who has been successively or anternately subject to the legislations of two or more Member States and who has completed periods of insurance exclusively under legislations according to which the amount of invalidity benefits is independent of the duration of periods of insurance shall receive benefits in accordance with Article 39. This Article shall not affect pension increases or supplements in respect of children, granted in accordance with Chapter 8.

2. Annex IV, part A, lists legislations of the kind mentioned in paragraph 1 which are in force in the territory of each of the Member States concerned.

Article

38 (8)

Consideration of periods of insurance or of residence completed under the legislation to which an employed person or a self-employed person was subject for the acquisition, retention or recovery of the right to benefits

1. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraphs 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, where necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general scheme or under a special scheme and either as an employed person or as a self-employed person. For that purpose, it shall take account of these periods as if they had been completed under its own legislation.

2. Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in a occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific employment, periods completed under the legislation of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same employment.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of these schemes.

3. Where the legislation of a Member State makes the granting of certain benefits conditional upon the period of insurance having been completed only in a occupation subject to a special scheme for self-employed persons, periods completed under the legislation of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation. The special schemes for self-employed persons referred to in this paragraph are listed in Annex IV, part B, for each Member State concerned.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of these schemes.

Article

39 (8)

Award of benefits

1. The institution of a Member State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred shall determine, in accordance with that legislation, whether the person concerned satisfies the conditions for entitlement to benefits, taking account, where appropriate, of Article 38.

2. A person who satisfies the conditions referred to in paragraph 1 shall receive the benefits only from the said institution, in accordance with the provisions of the legislation which it administers.

3. A person who is not entitled to benefits under paragraph 1 shall receive the benefits to which he is still entitled under the legislation of another Member State taking account, where appropriate, of Article 38.

4. If the legislation referred to in paragraphe 2 or 3 provides that the amount of the benefits shall be determined taking into account the existence of members of the family other than the children, the competent institution shall also take into consideration those members of the family of the person concerned who are residing in the territory of another Member State, as if they were residing in the territory of the competent State.

5. If the legislation referred to in paragraph 2 or 3 lays down provisions for the reduction, suspension or withdrawal of benefits in the case of overlapping with other income or with benefits of a different kind within the meaning of Article 46a (2), Article 46a (3) and Article 46c (5) shall apply mutatis mutandis.

6. A wholly unemployed employee to whom Article 71 (1) (a) (ii) or the first sentence of Article 71 (1) (b) (ii) applies shall receive the invalidity benefits provided by the competent institution of the Member State in whose territory he resides, in accordance with the legislation which it administers, as though he had been subject to that legislation during his last employment, account being taken, where appropriate, of Article 38 and/or Article 25 (2). The institution of the country of residence shall be responsible for paying these benefits.

If the legislation which that institution administers provides for the calculation of benefits to be based on wages or salaries, the institution shall take into account the wages or salaries received in the last country of employment and in the country of residence in accordance with the legislation which it administers. Where no wage or salary has been received in the country of residence, the competent institution shall refer, as necessary and in accordance with the rules laid down in its legislation, to the salaries received in the last country of employment.

Section 2 (8)

Employed persons or self-employed persons subject either only to legislations under which the amount of invalidity benefit depends on the duration of periods of insurance or residence or the legislation of this type and of the type referred to in Section 1

Article

40 (8)

General provisions

1. An employed person or a self-employed person who has been successively or alternately subject to the legislation of two or more Member States, of which at least one is not of the type referred to in Article 37 (1), shall receive benefits under the provisions of Chapter 3, which shall apply mutatis mutandis, taking into account the provisions of paragraph 4.

2. However, an employed or self-employed person who suffers incapacity for work leading to invalidity while subject to a legislation listed in Annex IV, part A, shall receive benefits in accordance with the provisions of Article 37 (1) on the following conditions:

- that he satisfied the conditions of that legislation or other legislations of the same type, taking account where appropriate of Article 38, but without having recourse to periods of insurance completed under legislations not listed in Annex IV, part A,

and

- that he does not satisfy the conditions required for the aquisition of the right to invalidity benefits under a legislation not listed in Annex IV, part A,

and

- that he does not assert any claims to old-age benefits, account being taken of the second sentence of Article 44 (2).

3. (a) For the purpose of determining the right to benefits under the legislation of a Member State, listed in Annex IV, part A, which makes the granting of invalidity benefits conditional upon the person concerned having received cash sickness benefits or having been incapable of work during a specified period, where an employed person or a self-employed person who has been subject to that legislation suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, account shall be taken of the following, without prejudice to Article 37 (1):

(i) any period during which, in respect of that incapacity for work, he has, under the legislation of the second Member State, received cash sickness benefits, or, in lieu thereof, continued to receive a wage or salary;

(ii) any period during which, in respect of the invalidity which followed that incapacity for work, he has received benefits within the meaning of Chapters 2 and 3 of Title III of the Regulation granted in respect of invalidity under the legislation of the second Member State, as if it were a period during which cash sickness benefits were paid to him under the legislation of the first Member State or during which he was incapable of working within the meaning of that legislation.

(b) The right to invalidity benefits under the legislation of the first Member State shall be acquired either upon expiry of the preliminary period of compensation for sickness as required by that legislation or upon expiry of the preliminary period of incapacity of work as required by that legislation, but not before:

(i) the date of acquisition of the right to invalidity benefits referred to in subparagraph (a) (ii) under the legislation of the second Member State,

or

(ii) the day following the last day on which the person concerned is entitled to cash sickness benefits under the legislation of the second Member State.

4. A decision taken by an institution of a Member State concerning the degree of invalidity of a claimant shall be binding on the institution of any other Member State concerned, provided that the concordance between the legislations of these States on conditions relating to the degree of invalidity is acknowledged in Annex V.

Section 3 (8)

Aggravation of invalidity

Article

41

1. In the case of aggravation of an invalidity for which an employed person or a self-employed person is receiving benefits under the legislation of a single Member State, the following provision shall apply:

(a) if the person concerned has not been subject to the legislation of another Member State since receiving benefits, the competent institution of the first State shall grant the benefits, taking the aggraviation into account, in accordance with the provisions of the legislation which it administers;

(b) if the person concerned has been subject to the legislation of one or more of the other Member States since receiving benefits, the benefits shall be granted to him, taking the aggravation into account, in accordance with Article 37 (1) or 40 (1) or (2), as appropriate;

(c) if the total amount of the benefit or benefits payable under subparagraph (b) is lower than the amount of the benefit which the person concerned was receiving at the expense of the institution previously liable for payment, such institution shall pay him a supplement equal to the difference between the two amounts;

(d) if, in the case referred to in subparagraph (b), the institution responsible for the initial incapacity is a Dutch institution, and if:

(i) the illness which caused the aggravation is the same as the one which gave rise to the granting of benefits under Dutch legislation;

(ii) this illness is an occupational disease within the meaning of the legislation of the Member State to which the person concerned was last subject and entitles him to payment of the supplement referred to in Article 60 (1) (b),

and

(iii) the legislation or legislations to which the person concerned has been subject since receiving benefits is or are listed in Annex IV, part A,

the Dutch institution shall continue to provide the initial benefit after the aggravation occurs, and the benefit due under the legislation of the last Member State to which the person concerned was subject shall be reduced by the amount of the Dutch benefit;

(e) if, in the case referred to in subparagraph (b), the person concerned is not entitled to benefits at the expense of an institution of another Member State, the competent institution of the first State shall grant the benefits, according to the provisions of the legislation of the State, taking into account the aggravation and, where appropriate, Article 38.

2. In the case of aggravation of an invalidity for which an employed person or a self-employed person is receiving benefits under the legislation of two or more Member States, the benefits shall be granted to him, taking the aggravation into account, in accordance with Article 40 (1).

Section 4 (8)

Resumption of provision of benefits after suspension or withdrawal - Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 39

Article

42 (8)

Determination of the institution responsible for the provision of benefits where provision of invalidity benefits is resumed

1. If provision of benefits is to be resumed after suspension, such provision shall, without prejudice to Article 43, be the responsibility of the institution or institutions which were responsible for provision of the benefits at the time of their suspension.

2. If, after withdrawal of benefits, the condition of the person concerned warrants the granting of further benefits, they shall be granted in accordance with Article 37 (1) or Article 40 (1) or (2), as appropriate.

Article

43 (8)

Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 39

1. Invalidity benefits shall be converted into old-age benefits, where appropriate, under the conditions laid down by the legislation or legislations under which they were granted, and in accordance with Chapter 3.

2. Where a person receiving invalidity benefits can establish a claim to old-age benefits under the legislation of one or more Member States, in accordance with Article 49, any institution which is responsible for providing invalidity benefits under the legislation of a Member State shall continue to provide such person with the invalidity benefits to which he is entitled under the legislation which it administers until the provisions of paragraph 1 become applicable as regards that institution or so long as the person concerned fulfils the conditions for such benefits.

3. Where invalidity benefits granted in accordance with Article 39 under the legislation of a Member State are converted into old-age benefits and where the person concerned does not yet satisfy the conditions required by one or more national legislations to receive these benefits, the person concerned shall receive, from this or these Member States, from the date of the conversion, invalidity benefits granted in accordance with Chapter 3 as if that Chapter had been applicable at the time when his incapacity for work leading to invalidity occurred, until the person concerned satisfies the qualifying conditions for old-age benefit laid down by the national legislation or legislations concerned or, where such conversion is not provided for, as long as he has a right to invalidity benefits under the legislation or legislations concerned.

4. The invalidity benefits provided under Article 39 shall be recalculated pursuant to Chapter 3 as soon as the beneficiary satisfies the qualifying conditions for invalidity benefits laid down by a legislation not listed in Annex IV, part A, or as soon as he receives old-age benefits under the legislation of another Member State.

CHAPTER 3

OLD AGE AND DEATH (PENSIONS)

Article

44 (8)

General provisions for the award of benefits where an employed or self-employed person has been subject to the legislation of two or more Member States

1. The rights to benefits of an employed or self-employed person who has been subject to the legislation of two or more Member States, or of his survivors, shall be determined in accordance with the provisions of this Chapter.

2. Save as otherwise provided in Article 49, the processing of a claim for an award submitted by the person concerned shall have regard to all the legislations to which the employed or self-employed person has been subject. Exception shall be made to this rule if the person concerned expressly asks for postponement of the award of old-age benefits to which he would be entitled under the legislation of one or more Member States.

3. This Chapter shall not apply to increase in pensions or to supplements for pensions in respect of children or to orphans' pensions granted in accordance with the provisions of Chapter 8.

Article

45 (8)

Consideration of periods of insurance or of residence completed under the legislations to which an employed person or self-employed person was subject, for the acquisition, retention or recovery of the right to benefits

1. Where the legislation of a Member States makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraphs 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, where necessary, of the periods of insurance or of residence under the legislation of any other Member State, be it under a general scheme or under a special scheme and either as an employed person or a self-employed person. For that purpose, it shall take account of these periods as if they had been completed under its own legislation.

2. 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 which is subject to a special scheme for employed persons or, where appropriate, in a specific employment, periods completed under the legislation of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same employment. If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person has been affiliated to one or other of these schemes.

3. 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 these benefits only if completed under a corresponding scheme or, failing that, in the same occupation. The special schemes for self-employed persons referred to in this paragraph are listed in Annex I, part B, for each Member State concerned. If, account having been taken of the periods referred to in this paragraph, the person concerned does not satisfy the conditions for receipt of these benefits, these 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 the case may be, subject to the condition that the person concerned has been affiliated to one or other of these schemes.

4. The periods of insurance completed under a special scheme of a Member State shall be taken into account under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, of another Member State for the acquisition, retention or recovery of the right to benefits, subject to the condition that the person concerned has been affiliated to one or other of these schemes, even if these periods have already been taken into account in the latter State under a scheme referred to in paragraph 2 or in the first sentence of paragraphe 3.

5. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits conditional upon the person concerned being insured at the time of the materialization of the risk, this condition shall be regarded as having been satisfied in the case of insurance under the legislation of another Member State, in accordance with the procedures provided for in Annex VI for each Member State concerned.

6. A period of full employment of a worker to whom Article 71 (1) (a) (ii) or (b) (ii), first sentence, applies shall be taken into account by the competent institution of the Member State in whose territory the worker concerned resides in accordance with the legislation administered by that institution, as if that legislation applied to him during his last employment.

If the period of full unemployment in the country of residence of the person concerned can be taken into account only if contribution periods have been completed in that country, this condition shall be deemed to be fulfilled if the contribution periods have been completed in another Member State.

Article

46 (8)

Award of benefits

1. Where the conditions required by the legislation of a Member State for entitlement to benefits have been satisfied without having to apply Article 45 or Article 40 (3), the following rules shall apply:

(a) the competent institution shall calculate the amount of the benefit that would be due:

(i) on the one hand, only under the provisions of the legislation which it administers;

(ii) on the other hand, pursuant to paragraph 2;

(b) the competent institution may, however, waive the calculation to be carried out in accordance with (a) (ii) if the result of this calculation, apart from differences arising from the use of round figures, is equal to or lower than the result of the calculation carried out in accordance with (a) (i), insofar as that institution does not apply any legislation containing rules against overlapping as referred to in Articles 46b and 46c or if the aforementioned institution applies a legislation containing rules against overlapping in the case referred to in Article 46c, provided that the said legislation lays down that benefits of a different kind shall be taken into consideration only on the basis of the relation of the periods of insurance or of residence completed under that legislation alone to the periods of insurance or of residence required by that legislation in order to qualify for full benefit entitlement.