DECISION No 84 of 22 February 1973 concerning the interpretation of Article 76 and Article 79 (3) of Regulation (EEC) No 1408/71 relating to the overlapping of family allowances

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

Having regard to Article 18 (a) of Regulation (EEC) No 1408/71 under which it is made responsible for dealing with all questions of interpretation arising from the provisions of Regulations (EEC) Nos 1408/71 and 574/72;

Whereas Decision No 61 published in the Official Journal of the European Communities, No 120 of 21 June 1967 has been rendered unvalid by the entry into force of Regulations (EEC) Nos 1408/71 and 574/72, but, taking into account the provisions of the said Regulations, there are grounds for adopting a new decision;

Whereas it is in fact essential to know the scope of the expression 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 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 period 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, 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 application of Article 76 and of Article 79 (3) of Regulation (EEC) No 1408/71, there shall be regarded as payable "by reason of the pursuit of a professional or a trade activity" family benefits or family allowances payable by reason of any professional or trade activity whether salaried or not and also in the course of any period of suspension of such professional or trade activity during paid holidays or as the result of sickness, maternity, accident at work, occupational disease, unemployment, strike or lock-out up to a limit of six months.

2. This Decision shall be published in the Official Journal of the European Communities. It shall apply to the six Founder Member States as from 1 October 1972 and, in accordance with the Treaty of Accession, as from 1 April 1973 for the three new Member States.

The President of the Administrative Commission

J. DONIS