DECISION No 141

of 17 October 1989

amending Decision No 127 of 17 October 1985 concerning the compilation of the lists provided for in Articles 94 (4) and 95 (4) of Council Regulation (EEC) No 574/72 of 21 March 1972

(90/C 94/05)

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 on the application of social security schemes to employed persons, self-employed persons, and members of their families moving within the Community, under which it is made responsible for dealing with all administrative questions and questions of interpretation arising from Regulation (EEC) No 1408/71 and subsequent Regulations,

Having regard to Article 36 (2) of the aforementioned Regulation (EEC) No 1408/71,

Having regard to Articles 17 (1) to (4), 29 (1) to (3), 94 (4) and (5), 95 (4) and (5) and 102 (2) of Regulation (EEC) No 574/72,

Having regard to Decision No 127 of 17 October 1985 [1],

Whereas the benefits in kind provided to the members of the family of an employed or self-employed person who are resident in the same territory of another Member State than the employed or self-employed person shall give rise to the refund of a single lump sum per family (Article 94 of Regulation (EEC) No 574/72); whereas the same benefits provided to the same persons would give rise to the refund of as many lump sums per pensioner and family (Article 95 of Regulation (EEC) No 574/72) as there are members of the family when they become individually entitled, pursuant to some legislations, to a survivor's pension;

Whereas the family as a group does not change in the abovementioned cases; whereas it should be taken into account as a unit both for the compilation of the lists and for the calculation of average costs and the refund of lump sums to be made pursuant to Article 95 of Regulation (EEC) No 574/72,

HAS DECIDED AS FOLLOWS:

Article 1

The lists provided for in Articles 94 (4) and 95 (4) of Regulation (EEC) No 574/72 shall be drawn up according to the following rules:

I. List provided for in Article 94 (4)

Families of employed or self-employed persons

1. For the purposes of applying paragraphs 1 to 4 of Article 17 of Regulation (EEC) No 574/72 the following procedure shall be laid down:

At the request of the employed or self-employed person the competent institution, after completing Part A of Form E 109, shall forward two copies to the person concerned, who shall pass them on to the members of his family. The latter must submit the two copies to the sickness insurance institution of the place of their residence when registering for the granting of benefits in kind.

If the members of the family do not submit the said certificate, the institution of the place of residence shall contact the competent institution by means of Form E 107; in such a case, the latter institution shall send the certificate in duplicate to the institution of the place of residence.

After completing Part B the institution of the place of residence of the members of the family shall send a copy to the sickness insurance institution with which the employed or self-employed person is insured.

2. The lump sums shall be calculated from the date on which entitlement to benefits in kind is acquired under the legislation of the competent State, unless the members of the family are still entitled to receive benefits in kind in the country of residence under the Regulations. In the latter case, the lump sums shall be calculated from the date on which such entitlement ends. The institution of the place of residence shall take account of this provision when it indicates the date from which the lump sums are calculated at item 9.10 of Form E 109.

3. The competent institution shall inform the institution of the place of residence of the withdrawal of entitlement to benefits in kind by sending two copies of Form E 108. The institution of the place of residence shall return one of these copies to the competent institution.

4. The institution of the place of residence shall keep the list up to date by taking as a basis the particulars supplied by the competent institutions concerning acquisition of entitlement (Form E 109) and concerning the suspension or withdrawal of entitlement to benefits (Form E 108 or, as regards France, Form E 109) to be submitted annually.

5. Where the members of the family of the employed or self-employed person transfer their place of residence to another Member State paragraph 1 above shall again be applied.

6. For the purposes of calculating lump sum payments, the period during which the persons concerned may claim benefits shall be counted in months.

The number of months shall be obtained by counting as a whole month the calendar month which contains the day from which the calculation of the lump sums has been made.

The calendar month during which entitlement has ceased shall not be counted unless it is a complete month.

If the period is less than one month it shall be counted as a month.

7. Where the members of an employed or self-employed person's family are living in several countries of residence other than the country in which the person concerned is employed and if the right to benefit has been acquired in each country of residence, a lump sum should be calculated for each country.

8. The lump sums shall be calculated on the basis of the figures obtained from the documents referred to in paragraph 4 above.

II. List provided for in Article 95 (4)

Pensioners and their families

1. The list shall be drawn up by using Form E 121 intended for the application of Article 29 (1) to (3) of Regulation (EEC) No 574/72 and Form E 108 relating to the suspension or withdrawal of entitlement to benefits.

2. The date from which the calculation of the lump sums is made shall be:

(a) the date of receipt of Form E 121 by the institution of the place of residence. This date shall be indicated at item 8.12 of the form and shall constitute the date on which Form E 120 ceases to have effect;

(b) the date on which entitlement to benefits in kind is acquired under the legislation of the competent country, where no Form E 120 has been issued; this date shall be indicated at item 5.3 of Form E 121;

(c) the date of the transfer of residence, where it is later than the date referred to under (a) or (b) above and where no Form E 111 has been issued;

(d) the date following the end of the period of entitlement as attested by Form E 111.

If pensioners or members of their families are still entitled to benefits under the legislation of their country of residence, the lump sum shall be calculated from the date on which such entitlement ends.

3. The provisions relating to the keeping of the list provided for in Article 94 (4) of Regulation (EEC) No 574/72, which are the subject of paragraphs 3 to 8 of Part I above, shall apply by analogy.

4. For the calculation of the lump sums and the compilation of the lists pursuant to Article 95 of Regulation (EEC) No 574/72, all persons receiving a survivor's pension in respect of the same insured person who reside in the territory of a Member State shall be considered as a unit.

5. Where the persons receiving a survivor's pension in respect of the same insured person reside in different Member States, a lump sum shall be taken into account for each Member State of residence.

Article 2

For the purposes of applying Article 102 (2) of Regulation (EEC) No 574/72 the institutions of the place of residence shall send every year to the institutions and bodies of their country designated in Annex 10 of Regulation (EEC) No 574/72 the individual statements of monthly lumps-sum payments (Form E 127) drawn up on the basis of the lists provided for in Articles 94 and 95 of Regulation (EEC) No 574/72.

The designated institutions and bodies of the country of residence shall send the aforementioned statements to the designated institutions and bodies of the competent country.

The E 127 forms shall indicate the number of monthly lump-sum payments due in respect of a single year for each family of an employed or self-employed person or for each pensioner.

Article 3

This Decision shall be published in the Official Journal of the European Communities.

It replaces Decision No 127 of 17 October 1985.

It shall be applicable from 1 January 1987.

The Chairman

of the Administrative

Commission

M. MOUSSEAU

[1] (1) OJ No C 141, 7. 6. 1986.

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