Decision No 136

of 1 July 1987

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

(88/C 64/06)

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

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

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

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

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

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

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

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

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

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

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

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

HAS DECIDED AS FOLLOWS:

1. The institution of a Member State administering a scheme that is not a special scheme within the meaning of Article 45 (2) or (3) of Regulation (EEC) No 1408/71 shall, for the acquisition, retention or recovery of the right to benefits within the meaning of Article 45 (1), take account of all periods completed under the legislation of any other Member State, whether under a general or a special scheme and whether as an employed or self-employed person.

2. A "special scheme for self-employed persons" within the meaning of Article 45 (3) of Regulation (EEC) No 1408/71 shall be any scheme listed in the Annex to this Decision.

3. The words "in so far as they have been completed under a scheme other than the abovementioned corresponding scheme" occurring in the second subparagraph of Article 45 (3) of Regulation (EEC) No 1408/71 shall be construed as: in so far as they have been completed under a corresponding scheme or under a scheme other than the abovementioned corresponding scheme.

4. Periods of insurance completed under the legislation of a Member State shall be taken into account under the general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate, of another Member State for the acquisition, retention or recovery of the right to benefits in so far as these periods have not already been taken into account in the latter State under the special scheme referred to in the first subparagraph of Article 45 (3) of Regulation (EEC) No 1408/71 for the acquisition, retention or recovery of the right to benefits.

5. This Decision which replaces Decision No 124 of the 12 December 1984 shall be published in the Official Journal of the European Communities. It shall be applicable from 1 January 1986.

The Chairman of the Administrative Commission

A. Trier

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ANNEX

Special schemes for self-employed persons within the meaning of Article 45 (3) of Regulation (EEC) No 1408/71

A. BELGIUM

None.

B. DENMARK

None.

C. GERMANY

Old age insurance for farmets (Altershilfe für Landwirte)

D. GREECE

None.

E. SPAIN

None.

F. FRANCE

None.

G. IRELAND

None.

H. ITALY

Pension insurance for (Assicurazione pensioni per):

- medical practitioners (medici),

- pharmacists (farmacisti),

- veterinarians (veterinari),

- midwives (ostetriche),

- engineers and architects (ingegneri ed architetti),

- surveyors (geometri),

- solicitors and barristers (avvocati e procuratori),

- economists (dottori commercialisti),

- accountants (ragionieri e periti commerciali),

- employment experts (consulenti del lavoro),

- notaries (notai),

- customs agents (spedizionieri doganali).

I. LUXEMBOURG

None.

J. NETHERLANDS

None.

K. PORTUGAL

None.

L. UNITED KINGDOM

None.

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