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DECISION NO 122

OF 20 APRIL 1983

CONCERNING THE APPLICATION OF ARTICLES 77 , 78 AND 79 ( 3 ) OF REGULATION ( EEC ) NO 1408/71 AND OF ARTICLE 10 ( 1 ) ( B ) OF REGULATION ( EEC ) NO 574/72

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

HAVING REGARD TO ARTICLE 81 ( A ) OF REGULATION ( EEC ) NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 UNDER WHICH IT IS MADE RESPONSIBLE FOR DEALING WITH ALL ADMINISTRATIVE QUESTIONS AND QUESTIONS OF INTERPRETATION ARISING FROM THE PROVISIONS OF REGULATION ( EEC ) NO 1408/71 AND SUBSEQUENT REGULATIONS ;

WHEREAS THE COURT OF JUSTICE OF THE EUROPEAN COMMUNITIES , HEREINAFTER CALLED THE " COURT OF JUSTICE " , IN ITS JUDGMENT 733/79 OF 12 JUNE 1980 RULED :

" ARTICLE 77 ( 2 ) ( B ) ( I ) OF REGULATION ( EEC ) NO 1408/71 MUST BE INTERPRETED AS MEANING THAT ENTITLEMENT TO FAMILY BENEFITS FROM THE STATE IN WHOSE TERRITORY THE RECIPIENT OF AN INVALIDITY PENSION RESIDES DOES NOT TAKE AWAY THE RIGHT TO HIGHER BENEFITS AWARDED PREVIOUSLY BY ANOTHER MEMBER STATE .

IF THE AMOUNT OF FAMILY BENEFITS ACTUALLY RECEIVED BY THE WORKER IN THE MEMBER STATE IN WHICH HE RESIDES IS LESS THAN THE AMOUNT OF THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE OTHER MEMBER STATE , HE IS ENTITLED TO A SUPPLEMENT TO THE BENEFITS FROM THE COMPETENT INSTITUTION OF THE LATTER STATE EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS' ;

WHEREAS THE COURT OF JUSTICE IN ITS JUDGMENT 807/79 OF 9 JULY 1980 RULED :

" ARTICLE 78 ( 2 ) ( B ) ( I ) OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 MUST BE INTERPRETED AS MEANING THAT THE ENTITLEMENT TO BENEFITS PAYABLE BY THE STATE IN WHOSE TERRITORY THE ORPHAN TO WHOM THEY HAVE BEEN AWARDED RESIDES DOES NOT REMOVE THE ENTITLEMENT TO BENEFITS GREATER IN AMOUNT PREVIOUSLY ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ALONE . WHERE THE AMOUNT OF THE BENEFITS ACTUALLY RECEIVED IN THE MEMBER STATE OF RESIDENCE IS LESS THAN THAT OF THE BENEFITS PROVIDED FOR BY THE LEGISLATION OF THE OTHER MEMBER STATE ALONE THE ORPHAN IS ENTITLED TO SUPPLEMENTARY BENEFITS , PAYABLE BY THE COMPETENT INSTITUTION OF THE LATTER STATE , EQUAL TO THE DIFFERENCE BETWEEN THE TWO AMOUNTS . "

WHEREAS THE COURT OF JUSTICE IN ITS JUDGMENT 100/78 OF 6 MARCH 1979 RULED :

" 1 . UNDER ARTICLE 79 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL , THE SUSPENSION OF THE ENTITLEMENT TO FAMILY ALLOWANCES IN RESPECT OF THE DEPENDENT CHILDREN OF A FATHER WHO IS IN RECEIPT OF A PENSION UNDER THE LEGISLATION OF A MEMBER STATE IS NOT APPLICABLE IF THE MOTHER HAS NOT ACTUALLY BECOME ENTITLED TO THOSE SAME ALLOWANCES UNDER THE LEGISLATION OF ANOTHER MEMBER STATE BY VIRTUE OF HER PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY , EITHER BECAUSE ONLY THE FATHER IS ACKNOWLEDGED TO HAVE THE STATUS OF HEAD OF HOUSEHOLD OR BECAUSE THE CONDITIONS FOR AWARDING TO THE MOTHER A RIGHT TO PAYMENT OF THE ALLOWANCES HAVE NOT BEEN FULFILLED .

2 . ARTICLE 79 ( 3 ) IS APPLICABLE ONLY TO THE EXTENT OF THE AMOUNT ACTUALLY PAID BY VIRTUE OF THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY . " ;

WHEREAS , FURTHERMORE THE OVERLAPPING OF BENEFITS DUE UNDER ARTICLE 77 OR 78 OF REGULATION ( EEC ) NO 1408/71 WITH BENEFITS OR FAMILY ALLOWANCES DUE UNDER OTHER LEGISLATION ARE GOVERNED ON THE ONE HAND BY ARTICLE 79 ( 3 ) OF THE AFOREMENTIONED REGULATION WHERE THE ENTITLEMENT TO BENEFITS OR FAMILY ALLOWANCES ACCRUES FROM THE PURSUIT OF A PROFESSIONAL OR TRADE ACTIVITY AND ON THE OTHER HAND BY ARTICLE 10 ( 1 ) ( B ) OF REGULATION ( EEC ) NO 574/72 WHERE THE ENTITLEMENT TO BENEFITS OR FAMILY ALLOWANCES IS NOT DEPENDENT ON CONDITIONS RELATING TO INSURANCE , EMPLOYMENT OR SELFEMPLOYMENT ; WHEREAS THE PROVISIONS LAID DOWN IN THESE RULES ARE IN PRINCIPLE THE SAME ; WHEREAS , CONSEQUENTLY FOR THE APPLICATION OF THE AFOREMENTIONED ARTICLE 10 ( 1 ) ( B ) , THERE IS REASON TO TAKE ACCOUNT OF THE INTERPRETATION GIVEN BY THE COURT OF JUSTICE TO THE AFOREMENTIONED ARTICLE 79 ( 3 ) ;

WHEREAS , IN ORDER TO IMPLEMENT THE DECISIONS OF THE COURT OF JUSTICE IN RESPECT OF ARTICLES 77 , 78 AND 79 OF REGULATION ( EEC ) NO 1408/71 , IT IS IN FACT NECESSARY TO DETERMINE THE CASES IN WHICH A SUPPLEMENT MUST BE PAID AND SPECIFY THE PROCEDURES FOR THE DETERMINATION OF THIS SUPPLEMENT AND THE DUTIES OF THE INSTITUTIONS .

ACTING IN ACCORDANCE WITH ARTICLE 80 ( 3 ) OF REGULATION ( EEC ) NO 1408/71 ,

HAS DECIDED :

1 . WHERE THE AMOUNT OF THE BENEFITS , AS DEFINED IN ARTICLE 77 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 , RECEIVED BY THE PERSON WHO IS ENTITLED TO A PENSION , DUE UNDER THE LEGISLATION OF A MEMBER STATE WHERE HE WAS RESIDING , IS HIGHER THAN THE AMOUNT OF THE BENEFITS THAT HE RECEIVES IN ANOTHER MEMBER STATE TO WHICH HE HAS TRANSFERRED HIS PLACE OF RESIDENCE AND UNDER WHOSE LEGISLATION A PENSION IS ALSO DUE , ARTICLE 77 ( 2 ) MUST BE APPLIED UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH 4 OF THIS DECISION IN SUCH A WAY THAT THE ENTITLEMENT TO BENEFITS UNDER THE LEGISLATION OF THE FIRST MEMBER STATE IS MAINTAINED INSOFAR AS THE AMOUNT THEREOF EXCEEDS THE AMOUNT OF BENEFITS ACTUALLY RECEIVED UNDER THE LEGISLATION OF THE NEW COUNTRY OF RESIDENCE .

2 . WHERE THE AMOUNT OF THE BENEFITS , AS DEFINED IN ARTICLE 78 ( 1 ) OF REGULATION ( EEC ) NO 1408/71 , WHICH WERE AWARDED UNDER THE LEGISLATION OF A MEMBER STATE FOR AN ORPHAN LIVING IN THAT STATE , IS HIGHER THAN THE AMOUNT OF THE BENEFITS WHICH ARE DUE FOR THAT ORPHAN UNDER THE LEGISLATION OF ANOTHER MEMBER STATE TO WHICH HE HAS TRANSFERRED HIS PLACE OF RESIDENCE , ARTICLE 78 ( 2 ) MUST BE APPLIED UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH 4 OF THIS DECISION IN SUCH A WAY THAT THE ENTITLEMENT TO BENEFITS UNDER THE LEGISLATION OF THE FIRST MEMBER STATE IS MAINTAINED INSOFAR AS THE AMOUNT THEREOF EXCEEDS THE AMOUNT ACTUALLY RECEIVED UNDER THE LEGISLATION OF THE NEW COUNTRY OF RESIDENCE .

3 . ARTICLE 79 ( 3 ) OF REGULATION ( EEC ) NO 1408/71 AND ARTICLE 10 ( 1 ) ( B ) , SECOND SENTENCE , OF REGULATION ( EEC ) NO 574/72 MUST BE APPLIED UNDER THE CONDITIONS LAID DOWN IN PARAGRAPH 4 OF THIS DECISION IN SUCH A WAY THAT THE RIGHT TO BENEFITS DUE UNDER THE LEGISLATION OF A MEMBER STATE UNDER ARTICLE 77 ( 2 ) OR ARTICLE 78 ( 2 ) IS SUSPENDED ONLY UP TO THE AMOUNT OF FAMILY BENEFITS OR FAMILY ALLOWANCES ACTUALLY RECEIVED IN THE COUNTRY OF RESIDENCE OF THE PERSON CONCERNED WHERE THE PROFESSIONAL OR TRADE ACTIVITY IS PURSUED .

4 . IN THE CASES MENTIONED IN PARAGRAPHS 1 , 2 AND 3 , THE COMPETENT INSTITUTION OF THE FIRST MEMBER STATE SHALL AWARD A SUPPLEMENT TO THE BENEFITS GRANTED UNDER THE LEGISLATION OF THE COUNTRY OF RESIDENCE , HEREINAFTER CALLED THE SECOND MEMBER STATE , EQUAL TO THE DIFFERENCE BETWEEN THE AMOUNT OF THE BENEFITS ACTUALLY RECEIVED UNDER THE LEGISLATION OF THE SECOND MEMBER STATE AND THE AMOUNT OF THE BENEFITS DUE UNDER THE LEGISLATION OF THE FIRST MEMBER STATE .

THE DETERMINATION OF THIS SUPPLEMENT SHALL TAKE ACCOUNT ONLY OF CHILDREN OR ORPHANS IN RESPECT OF WHOM ENTITLEMENT EXISTED BEFORE THE PLACE OF RESIDENCE WAS TRANSFERRED OR BEFORE PROFESSIONAL OR TRADE ACTIVITIES WERE CARRIED OUT . THIS SUPPLEMENT SHALL BE GRANTED AS LONG AS THE CONDITIONS REQUIRED FOR THE ENTITLEMENT TO BENEFIT UNDER THE LEGISLATION OF THE FIRST MEMBER STATE ARE SATISFIED . WHERE THE CONDITIONS REQUIRED FOR THE ENTITLEMENT TO BENEFIT UNDER THE LEGISLATION OF THE SECOND MEMBER STATE ARE NO LONGER SATISFIED THE FIRST MEMBER STATE SHALL PAY INSTEAD OF THE SUPPLEMENT THE FULL AMOUNT OF THE BENEFITS , WHICH ARE STILL DUE UNDER THE LEGISLATION OF THE LASTMENTIONED STATE .

5 . THE AMOUNT OF THE SUPPLEMENT SHALL BE DETERMINED FOR THE FIRST TIME AT THE VERY LATEST AFTER EXPIRY OF A PERIOD OF 12 MONTHS AFTER THE RIGHT TO BENEFITS IN THE SECOND MEMBER STATE HAS BEEN ACQUIRED . THEREAFTER THE DETERMINATION OF THE SUPPLEMENT SHALL BE CARRIED OUT AT LEAST EVERY 12 MONTHS . WHERE THE LEGISLATION OF A MEMBER STATE PROVIDES THAT A CLAIM MUST BE SUBMITTED FOR THE GRANTING OF THE BENEFIT , A CLAIM SHOULD BE SUBMITTED LIKEWISE FOR THE SUPPLEMENT .

6 . THE COMPETENT INSTITUTION OR INSTITUTIONS OF THE SECOND MEMBER STATE SHALL INFORM THE COMPETENT INSTITUTION OF THE FIRST MEMBER STATE IMMEDIATELY OF THE DATE ON WHICH THE RIGHT IS ACQUIRED UNDER THE LEGISLATION APPLIED BY THESE INSTITUTIONS AND ALSO OF THE NATURE AND THE AMOUNT OF THE BENEFITS .

AFTER EXPIRY OF THE PERIOD REFERRED TO IN PARAGRAPH 5 , THE INSTITUTION OR INSTITUTIONS OF THE SECOND MEMBER STATE SHALL INFORM THE INSTITUTION OR INSTITUTIONS OF THE FIRST MEMBER STATE OF THE EXACT AMOUNTS OF THE BENEFITS WHICH WERE PAID BY THE INSTITUTION OR INSTITUTIONS OF THE SECOND MEMBER STATE IN THE EXPIRED PERIODS .

7 . WHERE THE AMOUNT OF THE SUPPLEMENT HAS BEEN DETERMINED , THIS SHALL BE GRANTED IN ACCORDANCE WITH THE LEGISLATION OF THE FIRST MEMBER STATE AND IN ACCORDANCE WITH THE PROVISIONS OF REGULATIONS ( EEC ) NO 1408/71 AND ( EEC ) NO 574/72 RELATING TO THE BENEFITS IN QUESTION .

8 . AFTER EXPIRY OF THE PERIOD REFERRED TO IN PARAGRAPH 5 , THE INSTITUTION OR THE INSTITUTIONS OF THE FIRST MEMBER STATE SHALL INFORM THE BENEFICIARY OF THE DECISION TO AWARD OR REJECT A SUPPLEMENT , AND SHALL INDICATE :

( A ) THE AMOUNT OF THE BENEFITS DUE UNDER THE LEGISLATION OF THIS MEMBER STATE ;

( B ) THE AMOUNT OF THE BENEFITS ACTUALLY PAID UNDER THE LEGISLATION OF THE OTHER MEMBER STATE ; AND

( C ) THE AMOUNT OF ANY SUPPLEMENT .

9 . FOR THE PURPOSE OF COMPARING THE AMOUNTS OF THE BENEFITS FOR THE APPLICATION OF PARAGRAPH 8 , THE RATE OF EXCHANGE SHALL APPLY IN ACCORDANCE WITH ARTICLE 107 ( 1 ) , ( 2 ) AND ( 3 ) OF REGULATION ( EEC ) NO 574/72 .

FOR THE IMPLEMENTATION OF THIS DECISION , THE INSTITUTIONS SHALL USE THE FORMS DRAWN UP FOR CHAPTERS 7 AND 8 OF REGULATION ( EEC ) NO 1408/71 , TO WHICH , WHERE NECESSARY , ANY INFORMATION CONSIDERED TO BE NECESSARY BY THE INSTITUTIONS IN QUESTION SHALL BE ADDED .

10 . THIS DECISION SHALL BE PUBLISHED IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES .

IT SHALL ENTER INTO FORCE ON THE FIRST DAY OF THE MONTH FOLLOWING ITS PUBLICATION IN THE OFFICIAL JOURNAL OF THE EUROPEAN COMMUNITIES .

THE CHAIRMAN OF THE ADMINISTRATIVE COMMISSION

H . KAUPPER