COUNCIL REGULATION (EEC) No 2595/77 of 21 November 1977 amending Regulations (EEC) No 1408/71 and (EEC) No 574/72 on the application of social security schemes to employed persons and their families moving within the Community

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in particular Articles 2, 7 and 51 thereof,

Having regard to Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community (1), as last amended by Regulation (EEC) No 1209/76 (2), and in particular Articles 95 and 97 thereof,

Having regard to Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community (3), as last amended by Regulation (EEC) No 1209/76, and in particular Article 121 thereof,

Having regard to the proposal from the Commission drawn up after consultation with the Administrative Commission on Social Security for Migrant Workers,

Having regard to the opinion of the European Parliament (4),

Having regard to the opinion of the Economic and Social Committee (5),

Whereas the experience gained while implementing Regulations (EEC) No 1408/71 and (EEC) No 574/72 has revealed the need to make some improvements to the rights of migrant workers ; whereas, consequently, a worker who is receiving a pension under the legislation of one Member State while working in the territory of another Member State, should be allowed to be insured under the legislation of the latter Member State even if the legislation of that State exempts pensioners from compulsory insurance ; whereas workers should also be enabled to receive, without any restrictions, a pension acquired under the legislation of a Member State and to have a pension which was awarded under the legislation of another Member State postponed in order to receive the increase in pension due as a result of that postponement;

Whereas Regulation (EEC) No 1408/71 provides that the sickness and maternity insurance benefits in kind, provided to the members of the family who are residing in the territory of a Member State other than the competent State and other than the Member State in whose territory the worker resides, are refunded to the institution of the place of residence of the members of the family by the institution of the Member State to whose legislation the worker is subject ; whereas the reimbursement is made by way of an annual lump sum ; whereas it is therefore appropriate that the institution of the place of residence of the members of the family shall bear the cost of benefits in kind provided to these members of the family if they are staying in another Member State;

Whereas it is necessary to regulate the award of invalidity benefits in cases where a worker previously subject to legislation based on the materialization of the risk is subject to legislation based on the length of insurance, under which he becomes disabled, and where under the former legislation the award of invalidity benefits is subject to the condition that for a specified period the worker has previously received cash sickness benefits or has previously been incapable of work;

Whereas the Law on general insurance against incapacity for work entered into force in the Netherlands on 1 October 1976 ; whereas, since it is legislation based on the materialization of the risk, this Law should be mentioned in Annex III to Regulation (EEC) No 1408/71 ; whereas Annex V to this (1)OJ No L 149, 5.7.1971, p. 2. (2)OJ No L 138, 26.5.1976, p. 1. (3)OJ No L 74, 27.3.1972, p. 1. (4)OJ No C 266, 7.11.1977, p. 45. (5)Opinion delivered on 26/27 October 1977 (not yet published in the Official Journal). Regulation should also be amended to specify the pro rata temporis method of calculating invalidity benefits laid down by Netherlands legislation;

Whereas Annex V to Regulation (EEC) No 1408/71 should also be amended to take account of the consequences for Belgian, Irish and United Kingdom legislation of the addition of paragraph 3 (a) to Article 40 of the said Regulation and the consequences for Irish legislation of the amendment of Article 44 (2) of the said Regulation and to specify the procedures for affiliation to the voluntary sickness insurance scheme in the Netherlands and for the calculation of the contributions to this insurance;

Whereas Annex II to Regulation (EEC) No 1408/71 and Annexes 2, 5, 7 and 10 to Regulation (EEC) No 574/72 also need to be amended to take account of the Agreements concluded between certain Member States pursuant to these Regulations, and of the changes in the internal administrative organization of the Member States,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 1408/71 shall be amended as follows: 1. Article 14 (3) shall read as follows:

"3. The provisions of the legislation of a Member State under which a pensioner who is pursuing a professional or trade activity is not subject to compulsory insurance in respect of such activity shall also apply to a pensioner whose pension was acquired under the legislation of another Member State, unless the person concerned expressly asks to be so subject by applying to the institution designated by the competent authority of the first Member State and listed in Annex 10 to the Implementing Regulation."

2. Article 21 shall be replaced by the following:

"Article 21

Stay in or transfer of residence to the competent State

1. The worker referred to in Article 19 (1) who is staying in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State as though he were resident there, even if he has already received benefits for the same case of sickness or maternity before his stay.

2. Paragraph 1 shall apply by analogy to the members of the family referred to in Article 19 (2).

However, where the latter reside in the territory of a Member State other than the one in whose territory the worker resides, benefits in kind shall be provided by the institution of the place of stay on behalf of the institution of the place of residence of the persons concerned.

3. Paragraphs 1 and 2 shall not apply to frontier workers and the members of their families.

4. A worker and members of his family referred to in Article 19 who transfer their residence to the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State even if they have already received benefits for the same case of sickness or maternity before transferring their residence."

3. The following paragraph shall be added to Article 22 (3):

"However, for the purpose of applying paragraph 1 (a) (i) and (c) (i) to the members of the family referred to in Article 19 (2) who reside in the territory of a Member State other than the one in whose territory the worker resides: (a) benefits in kind shall be provided on behalf of the institution of the Member State in whose territory the members of the family are residing by the institution of the place of stay in accordance with the provisions of the legislation which it administers as if the worker were insured there. The period during which benefits are provided shall, however, be that laid down under the legislation of the Member State in whose territory the members of the family are residing;

(b) the authorization required under paragraph 1 (c) shall be issued by the institution of the Member State in whose territory the members of the family are residing."

4. Article 40: (a) A new paragraph 3 shall be added after paragraph 2:

"3. (a) For the purpose of determining the right to benefits under the legislation of a Member State, listed in Annex III, which makes the granting of invalidity benefits conditional upon the person concerned during a specified period having received cash sickness benefit or having been incapable of work, where a worker who has been subject to that legislation suffers incapacity for work followed by invalidity while subject to the legislation of another Member State, account shall, without prejudice to Article 37 (1), be taken of: (i) any period during which, in respect of that incapacity for work, he has, under the legislation of the second Member State, received cash sickness benefits or, in lieu thereof, continued to receive his wage or salary,

(ii) any period during which, in respect of the invalidity which followed that incapacity for work, he has received invalidity benefits under the legislation of the second Member State,

as if it were a period during which cash sickness benefits were paid to him under the legislation of the first Member State or during which he was incapable of work within the meaning of that legislation.

(b) The right to invalidity benefits under the legislation of the first Member State shall be acquired either upon expiry of the preliminary period of compensation for sickness as required by that legislation or upon expiry of the preliminary period of incapacity for work as required by that legislation, and at the earliest: (i) on the day on which the right to invalidity benefits is acquired under the legislation of the second Member State, or

(ii) on the day following the last day on which the person concerned is entitled to cash sickness benefits under the legislation of the second Member State."

(b) Paragraph 3 shall be renumbered paragraph 4.

5. The second sentence of Article 44 (2) shall be replaced by the following:

"Exception shall be made to this rule if the person concerned expressly asks for postponement of the award of old-age benefits to which he would be entitled under the legislation of one or more Member States."

6. The introductory subparagraph of Article 46 (2) shall be replaced by the following:

"2. Where a worker has been subject to the legislation of a Member State and where the conditions for entitlement to benefits are not satisfied unless account is taken of the provisions of Article 45 and/or Article 40 (3), the competent institution of that Member State shall apply the following rules:"

7. Annex II, Parts A and B:

Item 9 shall be replaced by the following:

"9. DENMARK - GERMANY (a) Item 15 of the Final Protocol to the Convention on social insurances of 14 August 1953.

(b) The Complementary Agreement of 14 August 1953 to the Convention mentioned above."

8. Annex III:

Section H shall read as follows:

"H. NETHERLANDS (a) The Law of 18 February 1966 on insurance against incapacity for work.

(b) The Law of 11 December 1975 on general insurance against incapacity for work."

9. Annex V: 1. Section "A. BELGIUM"

The following paragraph shall be added after paragraph 3:

"4. In applying Article 40 (3) (a) (ii), account shall only be taken of periods during which the worker was incapable of work within the meaning of Belgian legislation."

2. Section "E. IRELAND" (a) The following paragraph shall be added after paragraph 7:

"8. In applying Article 40 (3) (a) (ii), account shall only be taken of periods during which the worker was incapable of work within the meaning of Irish legislation."

(b) The following paragraph shall be added after paragraph 8:

"9. For the purposes of Article 44 (2), a worker shall be deemed to have expressly asked for postponement of the award of an old-age pension to which he would be entitled under the legislation of Ireland if, where retirement is a condition for receiving the old-age pension, he has not retired."

3. Section "H. NETHERLANDS" (a) Paragraph 1 shall be replaced by the following:

"1. Voluntary sickness insurance

(a) A person receiving an old-age pension under Netherlands legislation and a pension under the legislation of another Member State shall, for the purposes of Article 27 and/or Article 28, be considered to be entitled to benefits in kind if, taking into account Article 9, where appropriate, he satisfies the conditions required for admission to sickness insurance schemes for elderly persons or to voluntary insurance schemes laid down in the Law on sickness fund insurance (Ziekenfondswet).

This provision also applies to a married woman whose husband is receiving an old-age pension for married persons under Netherlands legislation and satisfies the conditions required for admission to sickness insurance schemes for elderly persons or to voluntary insurance schemes laid down in the Law on sickness fund insurance.

(b) A person receiving an old-age pension under Netherlands legislation who resides in another Member State shall, if he is insured under the sickness insurance schemes for elderly persons or under the voluntary insurance schemes laid down in the Law on sickness fund insurance, pay for himself and, if appropriate, for members of his family a contribution based on half of the average costs incurred in the Netherlands for medical treatment for an elderly person and members of his family. A reduction of this contribution shall be granted, the costs thereof being borne by the compulsory insurance scheme provided for in the Law on sickness fund insurance, corresponding to the part of the reduction, the costs whereof are borne by the said scheme, that is granted to persons residing in the Netherlands who are covered by the sickness insurance schemes for elderly persons and whose contributions are fixed on the same basis.

(c) A person who is not receiving an old-age pension under Netherlands legislation and, if he is married, whose spouse is not receiving an old-age pension for married persons under Netherlands legislation shall, if he resides in another Member State and if he is insured under the voluntary insurance scheme laid down in the Law on sickness fund insurance, pay for himself and, if appropriate, for each member of his family who has reached the age of 16 years an amount of contribution which corresponds to the average of the contributions fixed by the sickness funds in the Netherlands for voluntarily insured persons residing in the Netherlands. The contribution shall be rounded up to the nearest multiple of one guilder."

(b) The following paragraphs shall be added to paragraph 4:

" 5. Application of Netherlands legislation on general insurance against incapacity for work (a) For the purposes of Article 46 (2), the only periods considered as periods of insurance completed under the Netherlands Law on general insurance against incapacity for work (AAW) shall be the periods of insurance completed under this law which coincide with the periods of insurance completed under the Netherlands Law on insurance against incapacity for work (WAO).

(b) If the benefit under the Law on insurance against incapacity for work (WAO), calculated pursuant to Article 46 (2), is greater than the benefit under the Law on general insurance against incapacity for work (AAW), calculated pursuant to the same provision, the latter benefit shall not be paid.

6. Application of certain transitional provisions

Article 45 (1) shall not apply to the assessment of entitlement to benefits under the transitional provisions of the legislations on general old-age insurance (Article 46), on general insurance for widows and orphans and on general insurance against incapacity for work.

"

4. Section "I. UNITED KINGDOM"

The following paragraph shall be added after paragraph 17:

"18. In applying Article 40 (3) (a) (ii), account shall only be taken of periods during which the worker was incapable of work within the meaning of United Kingdom legislation."

Article 2

Regulation (EEC) No 574/72 shall be amended as follows: 1. Article 4 (10):

Before the words "of Article 6 (1)" insert "of Article 14 (3) of the Regulation,".

2. Article 9 (2):

The words "the worker" shall be replaced by "the deceased person".

3. The following paragraph shall be added to Article 23:

"However, in the cases referred to in the second subparagraph of Article 22 (3) of the Regulation, the institution of the place of residence and the legislation of the country of residence of the members of the family shall be considered, respectively, as the competent institution and as the legislation of the competent State for the purposes of Articles 17 (6) and (7), 21 and 22 of the Implementing Regulation."

4. In Article 93: (a) Paragraph 1:

Before the words "of Article 22" insert "of Article 21 (2),".

(b) Paragraph 2 shall be replaced by the following:

"2. In the cases referred to in the second subparagraph of Article 21 (2), the second subparagraph of Article 22 (3) and in Articles 29 (1) and 31 of the Regulation, and for the purposes of implementing paragraph 1, the institution of the place of residence of the members of the family or of the pensioner, as the case may be, shall be considered the competent institution."

5. Annex 2, Section "H. NETHERLANDS"

Paragraph 4 shall read as follows: >PIC FILE= "T0011623">

6. Annex 5: (a) The following paragraph (e) shall be added to Section "2. BELGIUM - GERMANY":

"(e) The Agreement of 4 December 1975 on the waiving of reimbursement of the amount of benefits provided to unemployed persons."

(b) The following paragraph (e) shall be added to Section "3. BELGIUM - FRANCE":

"(e) The Agreement of 14 May 1976 on the waiving of reimbursement of the costs of administrative checks and medical examinations, adopted pursuant to Article 105 (2) of the Implementing Regulation."

(c) The following paragraph (e) shall be added to Section "6. BELGIUM - LUXEMBOURG":

"(e) The Agreement of 16 April 1976 on the waiving of reimbursement of the costs of administrative checks and medical examinations, adopted pursuant to Article 105 (2) of the Implementing Regulation."

(d) Sections 7 and 8 shall read as follows:

" 7. BELGIUM - NETHERLANDS (a) Articles 2, 3, 25 (2), 26 (1) and (2), 27, 46 and 48 of the Agreement of 4 November 1957 on insurance for sickness, maternity, death (funeral expenses), medical treatment and invalidity, and the Agreement of 24 March 1975 amending this Agreement.

(b) Articles 6, 9 to 15 and the fourth paragraph of Article 17 of the Agreement of 7 February 1964 on family and childbirth allowances.

(c) The Agreement of 10 September 1964 on the refund of benefits in kind provided to pensioners who were formerly frontier workers, implementing Article 14 (3) of Regulation No 36/63/EEC and Article 73 (4) of Regulation No 4.

(d) Articles 9, 15 (2), 17, 18, 29 and 37 of the Agreement of 10 April 1965 on insurance against sickness, invalidity and the unemployment of mariners of the merchant navy.

(e) The Agreement on the reimbursement of administrative expenses concluded on 5 July 1967 between the competent Belgian and Netherlands authorities, pursuant to Article 45 (2) of Regulation No 3 and Article 77 of Regulation No 4 of the Council of the European Economic Community.

(f) The Agreement of 21 March 1968 on the collection and recovery of social security contributions, and the Administrative Arrangement of 25 November 1970 made pursuant to the said Agreement.

(g) The Agreement of 17 November 1976 on administrative checks and medical examinations and mutual administrative aid in connection with insurance against sickness and invalidity.

8. BELGIUM - UNITED KINGDOM (a) The exchange of letters of 4 May and 14 June 1976 regarding Article 105 (2) of the Implementing Regulation (waiving of reimbursement of the costs of administrative checks and medical examinations).

(b) The exchange of letters of 18 January and 14 March 1977 regarding Article 36 (3) of the Regulation (arrangement for reimbursement or waiving of reimbursement of the costs of benefits in kind provided under the terms of Chapter 1 of Title III of the Regulation).

"

(e) Section 15 shall read as follows:

"15. DENMARK - UNITED KINGDOM

The exchange of letters of 30 March and 19 April 1977 regarding Articles 36 (3), 63 (3) and 70 (3) of the Regulation and Article 105 (2) of the Implementing Regulation (waiving of reimbursement of the costs of: (a) benefits in kind provided under the terms of Chapter 1 or 4 of Title III of the Regulation,

(b) benefits paid in accordance with Article 69 of the Regulation, and

(c) administrative checks and medical examinations referred to in Article 105 of the Implementing Regulation)."

(f) The following paragraphs (c) and (d) shall be added to Section "19. GERMANY - LUXEMBOURG":

" (c) The Agreement of 14 October 1975 on the waiving of reimbursement of the costs of administrative checks and medical examinations, adopted pursuant to Article 105 (2) of the Implementing Regulation.

(d) The Agreement of 14 October 1975 on the collection and recovery of social security contributions.

"

(g) The following paragraph shall be added to Section "20. GERMANY - NETHERLANDS":

"(f) The Agreement of 22 July 1976 on the waiving of reimbursement of unemployment benefits."

(h) Sections 24, 25 and 26 shall read as follows:

" 24. FRANCE - LUXEMBOURG (a) The Agreement of 24 February 1969 concluded pursuant to Article 51 of Regulation No 3, and the Administrative Arrangement of the same date made pursuant to the said Agreement.

(b) The Agreement of 2 July 1976 on the waiving of reimbursement, provided for in Article 36 (3) of Council Regulation (EEC) No 1408/71 of 14 June 1971, of the costs of sickness or maternity insurance benefits in kind provided to members of a worker's family who do not reside in the same country as the worker.

(c) The Agreement of 2 July 1976 on the waiving of reimbursement, provided for in Article 36 (3) of Council Regulation (EEC) No 1408/71 of 14 June 1971, of the costs of sickness or maternity insurance benefits in kind provided to former frontier workers, the members of their families, or their survivors.

(d) The Agreement of 2 July 1976 on the waiving of reimbursement of the costs of administrative checks and medical examinations provided for in Article 105 (2) of Council Regulation (EEC) No 574/72 of 21 March 1972.

25. FRANCE - NETHERLANDS (a) The exchange of letters of 5 May and 21 June 1960 concerning Article 23 (5) of Regulation No 3 (waiving of reimbursement of benefits in kind provided to the members of the families of insured persons and to pensioners and members of their families).

(b) The Agreement of 28 April 1977 on the waiving of reimbursement of expenses for medical treatment provided to applicants for a pension and members of their families and to members of the families of pensioners within the framework of the Regulations.

(c) The Agreement of 28 April 1977 on the waiving of reimbursement of the costs of administrative checks and medical examinations pursuant to Article 105 of the Implementing Regulation.

26. FRANCE - UNITED KINGDOM (a) The exchange of letters of 25 March and 28 April 1977 regarding Articles 36 (3) and 63 (3) of the Regulation (arrangement for reimbursement or waiving of reimbursement of the costs of benefits in kind provided under the terms of Chapter I or 4 of Title III of the Regulation).

(b) The exchange of letters of 25 March and 28 April 1977 regarding Article 36 (3) of the Regulation (waiving for a limited period of reimbursement of the costs of benefits in kind provided under the terms of Articles 28, 28a and 29 (1) (a) of the Regulation).

(c) The exchange of letters of 25 March and 28 April 1977 regarding Article 105 (2) of the Implementing Regulation (waiving of reimbursement of the costs of administrative checks and medical examinations).

"

(i) Section 28 shall read as follows:

"28. IRELAND - LUXEMBOURG

The exchange of letters of 26 September 1975 and 5 August 1976 concerning Articles 36 (3) and 63 (3) of the Regulation and Article 105 (2) of the Implementing Regulation (waiving of reimbursement of benefits in kind provided pursuant to Chapter 1 or 4 of Title III of the Regulation, and of the costs of administrative checks and medical examinations referred to in Article 105 of the Implementing Regulation)."

(j) Section 30 shall read as follows:

"30. IRELAND - UNITED KINGDOM

The exchange of letters of 9 July 1975 regarding Articles 36 (3) and 63 (3) of the Regulation (arrangement for reimbursement or waiving of reimbursement of the costs of benefits in kind provided under the terms Chapter 1 or 4 of Title III of the Regulation) and Article 105 (2) of the Implementing Regulation (waiving of reimbursement of the costs of administrative checks and medical examinations)."

(k) Section 34 shall read as follows:

"34. LUXEMBOURG - NETHERLANDS (a) The Agreement of 1 November 1976 on the waiving of reimbursement of the costs of administrative checks and medical examinations adopted pursuant to Article 105 (2) of the Implementing Regulation.

(b) The Agreement of 3 February 1977 on the waiving of reimbursement of the costs of sickness or maternity insurance benefits in kind provided pursuant to Articles 19 (2), 26, 28 and 29 (1) of Council Regulation (EEC) No 1408/71 of 14 June 1971."

(l) Section 36 shall read as follows:

"36. NETHERLANDS - UNITED KINGDOM (a) The second sentence of Article 3 of the Administrative Arrangement of 12 June 1956 on the implementation of the Convention of 11 August 1954.

(b) The exchange of letters of 8 and 28 January 1976 regarding Article 70 (3) of the Regulation (waiving of reimbursement of benefits provided pursuant to Article 69 of the Regulation).

(c) The exchange of letters of 24 February and 5 March 1976 on Articles 36 (3) and 63 (3) of the Regulation (waiving of reimbursement of benefits in kind provided pursuant to Chapter 1 or 4 of Title III of the Regulation)."

7. Annex 7:

Section G shall read as follows:

"G. LUXEMBOURG : Caisse d'Épargne (Savings Bank), Luxembourg".

8. Annex 10: >PIC FILE= "T0011624">

>PIC FILE= "T0011625">

Article 3

This Regulation shall enter into force on the day of its publication in the Official Journal of the European Communities.

Article 1 (4) and (6) shall be applicable as from 1 July 1976 for the purposes of the application of Irish, Netherlands and United Kingdom legislation.

Points 2 (a) and 4 of Article 1 (9) shall be applicable as from 1 July 1976.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels, 21 November 1977.

For the Council

The President

H. SIMONET