DECISION No H12

of 19 October 2021

concerning the date to be taken into consideration for determining the rates of conversion referred to in Article 90 of Regulation (EC) No 987/2009 of the European Parliament and of the Council

(Text of relevance to the EEA and to the EC/Switzerland Agreement)

(2022/C 93/06)

THE ADMINISTRATIVE COMMISSION FOR THE COORDINATION OF SOCIAL SECURITY SYSTEMS,

Having regard to Article 72(a) of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (1), under which it is responsible for dealing with all administrative questions or questions of interpretation arising from the provisions of Regulation (EC) No 883/2004 and Regulation (EC) No 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (2),

Having regard to Article 90 of Regulation (EC) No 987/2009 concerning currency conversion,

Whereas:

(1) Many provisions such as e.g. Articles 5(a), 21(1), 29, 34, 52, 62(3), 65(6) and (7), 68(2) and 84 of Regulation (EC) No 883/2004 and Articles 25(4) and (5), 26 (7), 54(2), 70, 72, 73, 78 and 80 of Regulation (EC) No 987/2009, contain situations, where for the purpose of the payment, calculation or recalculation of a benefit or contribution, a reimbursement, or for the purposes of offsetting and the recovery procedures, the exchange rate needs to be determined.

(2) Article 90 of Regulation (EC) No 987/2009 empowers the Administrative Commission to fix the date to be taken into consideration for determining the rates of conversion to be applied when calculating certain benefits and contributions.

(3) The jurisprudence of the Court of Justice of the EU (3) recalls that Member States need to take appropriate measures in order to take into account possible currency fluctuations arising in the application of the Basic Regulation or the Implementing Regulations. These measures shall respect the objective of the respective provisions of the Basic Regulation or Implementing Regulation as defined by the jurisprudence of the Court of Justice. Acting in accordance with the conditions laid down in Article 71(2) of Regulation (EC) No 883/2004,

HAS DECIDED AS FOLLOWS:

1. For the purpose of this Decision the rate of conversion shall be understood as a daily conversion rate published by the European Central Bank.

2. If not otherwise stated in this Decision, the rate of conversion shall be the rate published on the day when the operation is performed.

3. An institution of a Member State, which for the purpose of the establishment of an entitlement, and for the first calculation of the benefit has to convert an amount, shall use: (a) when, according to national legislation or Regulation (EC) No 883/2004, an institution takes into account amounts, such as earnings or benefits, during a certain period before the date for which the benefit is calculated, the rate of conversion published on the last day of that period; (b) when, according to national legislation or Regulation (EC) No 883/2004, for the purpose of calculation of the benefit an institution takes into account one amount, the rate of conversion published on the first day of the month immediately preceding the month when the provision must be applied.

4. Paragraph 3 shall apply mutatis mutandis when an institution of a Member State for the recalculation of the benefit due to changes in the factual or legal situation of the person concerned, has to convert an amount.

5. An institution which pays benefit that is regularly indexed according to the national law, and where the amounts in other currency have an impact on that benefit, shall, when recalculating it use the rate of conversion published on the first day of the month preceding the month when the indexation is due, unless provided for differently in the national legislation.

6. For the purposes of Article 90 of Regulation (EC) No 987/2009, the date to be taken into account for determining the applicable exchange rate between two currencies shall be: (a) in the case of a request for offsetting from arrears/ongoing payments, the working day immediately preceding the day on which the applicant party sent the final request for offsetting from arrears/ongoing payments; or (b) in the case of a request for recovery, the working day immediately preceding the day on which the applicant party sent the first request for recovery. For the purposes of this paragraph, working day shall refer to a working day of the European Central Bank on which it publishes a daily reference rate for currency exchange.

7. For the purposes of Article 65(6) and (7) of Regulation (EC) No 883/2004 and Article 70 of Regulation (EC) No 987/2009 when the comparison is made between the amount actually paid by the institution of the place of residence and the maximum amount of the reimbursement referred to in the third sentence of Article 65(6) of Regulation (EC) No 883/2004 (the amount of the benefit to which a person concerned would be entitled according to the legislation of the Member State to which he/she was last subject if registered with the employment services of that Member State), the date to be taken into consideration for determining the rate of conversion shall be the first day of the calendar month in which the reimbursable period ended.

8. This Decision shall be published in the Official Journal of the European Union . It shall apply from the date of publication.

9. This Decision replaces Decision No H3 of 15 October 2009 ( 4 )

The Chair of the Administrative Commission Greta Metka BARBO ŠKERBINC

(1) OJ L 166, 30.4.2004, p. 1.

(2) OJ L 284, 30.10.2009, p. 1.

(3) C-473/18, ECLI:EU:C:2019:662

(4) Decision No H3 of 15 October 2009 concerning the date to be taken into consideration for determining the rates of conversion referred to in Article 90 of Regulation (EC) No 987/2009 of the European Parliament and of the Council (OJ C 106, 24.4.2010, p. 56) as amended by the Decision No H7 of 25 June 2015 on the revision of the Decision No H3 concerning the date to be taken into consideration for determining the rates of conversion referred to in Article 90 of Regulation (EC) No 987/2009 of the European Parliament and of the Council (OJ C 52, 11.2.2016, p. 13).