ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS DECISION No 119 of 24 February 1983 concerning the interpretation of Article 76 and Article 79 (3) of Regulation (EEC) No 1408/71 and of Article 10 (1) of Regulation (EEC) No 574/72 relating to the overlapping of family benefits and allowances

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 questions of interpretation arising from the provisions of Regulation (EEC) No 1408/71 and subsequent Regulations;

Whereas it is essential to know the scope of the expression family benefits or family allowances payable "by reason of the pursuit of a professional or trade activity" found in Article 76 and Article 79 (3) of Regulation (EEC) No 1408/71;

Whereas if family benefits or family allowances are payable to two different persons in the course of one and the same period for the same member of the family under the legislation of the competent State and under the legislation of the State in the territory of which the members of the family are residing, entitlement to family benefits or family allowances under the legislation of the competent State shall be suspended by the application of Article 76 of Regulation (EEC) No 1408/71 if the family benefits or family allowances are payable "by reason of the pursuit of a professional or trade activity under the legislation of the other State ; and whereas Article 79 (3) of Regulation (EEC) No 1408/71 contains a similar provision concerning benefits for pensioners and orphans;

Whereas Article 76 and Article 79 (3) of Regulation (EEC) No 1408/71 do not distinguish between benefits or allowances payable by reason of a non-salaried professional or trade activity and those payable by reason of a salaried professional or trade activity;

Whereas, furthermore, the legislations of certain Member States provide that periods of suspension or interruption of actual professional or trade activity by reason of holidays, unemployment, temporary incapacity for work, strikes or lock-outs, shall be treated either as periods of professional or trade activity for the acquisition of entitlement to family benefits or family allowances or shall be regarded as periods of inactivity giving rise, where appropriate, either per se or as the result of preceding professional or trade activity, to the payment of family benefits or family allowances;

Whereas, in order to avoid any uncertainties or differences in interpretation, it is essential to define the scope of the expression "by reason of the pursuit of a professional or trade activity" in relation to the Community as a whole;

Whereas it is also essential to know the scope of the term professional or trade activity" as referred to in Article 10 (1) of Council Regulation (EEC) No 574/72 of 21 March 1972;

Whereas, if family benefits or allowances are payable to two different persons in the course of one and the same period for the same member of the family under the legislation of the competent State and under the legislation of another State according to which the acquisition of the right to benefits is not subject to conditions governing insurance, employment or self-employment, entitlement to family benefits or family allowances under the legislation of the competent State shall be suspended by the application of Article 10 (1) (a) of Regulation (EEC) No 574/72 where the spouse of the salaried worker or of the unemployed worker carries out professional or trade activity ; and whereas Article 10 (1) (b) of Regulation (EEC) No 574/72 contains a similar provision concerning benefits for pensioners and orphans;

Whereas, in the matter of overlapping of family benefits or allowances, the purpose of Article 10 (1) is to impart to the pursuit of a professional or trade activity in a Member State where entitlement to family benefits or allowances does not result from the pursuit of such activity the same effect as in Member States where this entitlement does arise from the pursuit of such activity ; and whereas, the interpretation of Articles 76 and 79 (3) of Regulation (EEC) No 1408/71 shall also apply in the case of Article 10 (1) of Regulation (EEC) No 574/72;

After deliberation in the light of the conditions laid down in Article 80 (3) of Regulation (EEC) No 1408/71,

HAS DECIDED:

1. For the purposes of Article 76 and Article 79 (3) of Regulation (EEC) No 1408/71, family benefits or family allowances shall be regarded as payable "by reason of the pursuit of a professional or trade activity": (a) by the exercise of any professional or trade activity whether salaried or not ; and also

(b) in the course of any period of temporary suspension of such professional or trade activity (i) as a result of sickness, maternity, accident at work, occupational disease or unemployment, as long as wages or benefits, excluding pensions, are payable in respect of these contingencies ; or

(ii) during paid leave, strike or lock-out.

2. For the purposes of Article 10 (1) of Regulation (EEC) No 574/72 there shall be regarded as exercise of "a professional or trade activity": (a) the actual exercise of any professional or trade activity, whether salaried or not ; and also

(b) the temporary suspension of such professional or trade activity (i) as a result of sickness, maternity, accident at work, occupational disease or unemployment, as long as wages or benefits, excluding pensions, are payable in respect of these contingencies ; or

(ii) during paid leave, strike or lock-out.

3. This Decision shall replace Decision No 84 of 22 February 1973. It shall enter into force on the first day following its publication in the Official Journal of the European Communities.

The Chairman

of the Administrative Commission

H. KAUPPER