No C 240/6 Official Journal of the European Communities 21. 9. 85 
II 
(Preparatory Acts) 
COMMISSION 
Proposal for a Council Regulation amending Regulation (EEC) No 1408/71 on the application 
of social security schemes to employed persons, to self-employed persons and to members of 
their families moving within the Community 
(COM(85) 396 final) 
(Submitted by the Commission to the Council on 8 August 1985) 
(85/C 240/08) 
THE COUNCIL OF THE EUROPEAN COMMUNITIES, 
Having regard to the Treaty establishing the European 
Economic Community, and in particular Articles 7, 51 
and 235 thereof; 
Having regard to the proposal of the Commission drawn 
up after consulting the Administrative Commission on 
Social Security for Migrant Workers; 
Having regard to the opinion of the European 
Parliament; 
Having regard to the opinion of the Economic and 
Social Committee; 
Whereas it is necessary to amend Council Regulation 
(EEC) No 1408/71 (*), as last amended by Regulation 
(EEC) No 1660/85 (2); 
Whereas it is necessary to extend the definition of 
'member of the famil/ in Regulation (EEC) No 1408/71 
to conform with the case law of the Court of Justice 
concerning the interpretation of that expression; 
Whereas it is also necessary to take account of the case 
law of the Court of Justice stating that certain benefits 
provided under national laws may fall simultaneously 
within the categories of both social security and social 
assistance because of the class of persons to whom such 
laws apply, their objectives and their manner of 
application; 
Whereas the Court has stated that, in some of its 
features, legislation under which such benefits are granted 
is akin to social assistance in that need is an essential 
criterion in its implementation and the conditions of 
entitlement are not based upon the aggregation of 
periods of employment or contributions, whilst in other 
features it is close to social security to the extent that there is an absence of discretion in the manner in which 
such benefits as are provided thereunder are awarded, 
and in that it confers a legally defined position upon 
beneficiaries; 
Whereas Regulation (EEC) No 1408/71 excludes from 
its scope, by virtue of Article 4 (4) thereof, social 
assistance schemes; 
Whereas the conditions referred to and their methods of 
application are such that a system of coordination which 
differs from that currently provided for in Regulation 
(EEC) No 1408/71, and which takes account of the 
special characteristics of the benefits concerned, should 
be included in that Regulation in order to protect the 
interests of migrant workers in accordance with the 
provisions of Article 51 of the Treaty; 
Whereas such benefits should be granted, in respect of 
persons falling within the scope of Regulation (EEC) No 
1408/71, solely in accordance with the legislation of the 
country of residence of the person concerned, or of the 
members of his or her family, with such aggregation of 
periods of residence completed in any other Member 
State as is necessary and without discrimination on 
grounds of nationality; 
Whereas it is necessary nevertheless to ensure that the 
existing system of coordination in Regulation (EEC) No 
1408/71 continues to apply to benefits which either do 
not fall within the special category of benefits referred to 
or are not expressly included in an Annex to that Regu­
lation; whereas a new Annex is needed for this purpose; 
HAS ADOPTED THIS REGULATION: 
Article 1 
Regulation (EEC) No 1408/71 is hereby amended as 
follows: 
1. Article 1 is amended as follows: 
O OJ No L 149, 5. 7. 1971, p. 2. 
(*) OJ No L 160, 20. 6. 1985, p. 1. (a) Point (f) becomes point (f) (i), and the following 
is inserted as point (f) (ii): 
21.9.85 Official Journal of the European Communities No C 240/7 
'(ii) where, however, the benefits concerned are 
benefits for disabled persons granted under 
the legislation of a Member State to all 
nationals of that State who fulfil the pre­
scribed conditions, the term "member of the 
family" means the spouse of an employed or 
self-employed person and the children of 
such person who are either minors or who 
are dependent upon such person.' 
(b) In point (j), the following words are added to the 
first subparagraph: 
'or those special non-contributory benefits 
covered by Article 4 (2a).' 
2. In Article 4, the following paragraph 2a is inserted: 
'2a This Regulation shall also apply to special non-
contributory benefits which are provided under 
legislation other than that covered by paragraph 1, 
where such benefits: 
(a) Function as supplements or as substitutes upon the 
materialization of any of the risks covered by the 
branches of social security referred to in 
paragraph 1 (a) to (h); or 
(b) are intended solely for the protection of the 
disabled; or 
(c) are intended to guarantee a minimum social 
income.' 
3. Article 5 is replaced by the following: 
'Article 5 
Declarations of Member States on the scope of this Regu­
lation 
The Member States shall specify the legislation and 
schemes referred to in Article 4 (1) and (2), the 
special non-contributory cash benefits as referred to 
in Article 4 (2a), the minimum benefits referred to in 
Article 50 and the benefits referred to in Articles 77 
and 78 in declarations to be notified and published in 
accordance with Article 97.' 
4. The following Article 10a is inserted after Article 10: 
'Article 10a 
1. Notwithstanding the provisions of Article 10 and 
the provisions of Title III, persons to whom this 
Regulation applies shall be granted special non-contri­
butory cash benefits as referred to in Article 4 (2a) 
exclusively in accordance with the legislation of the 
Member State in whose territory they reside, provided 
that such benefits are listed in Annex Ha. 
Such benefits shall be granted by and at the expense 
of the institution of the place of residence. 
2. The institution of a Member State whose 
legislation makes entitlement to the benefits referred 
to in paragraph 1 subject to the completion of periods 
of employment, self-employment or residence shall 
take account, to the extent necessary, of periods of 
employment, self-employment or residence completed 
in the territory of any other Member State as if they were periods completed in the territory of the first 
Member State. 
3. Where the legislation of a Member State makes 
entitlement to a benefit, which comes within the scope 
of paragraph 1 but which is granted in the form of a 
supplement, subject to receipt of a benefit coming 
within the scope of Article 4 (1) (a) to (h), and no 
such benefit is due under that legislation, any 
corresponding benefit granted under the legislation of 
any other Member State shall be treated as a benefit 
granted under the legislation of the first Member 
State for the purposes of entitlement to the 
supplement. 
4. Where the legislation of a Member State makes 
entitlement to a benefit, as referred to in paragraph 1, 
for disability or invalidity, subject to the condition 
that the disability or invalidity should be diagnosed 
for the first time in the territory of that Member 
State, this condition shall be deemed to be fulfilled 
where such diagnosis is made for the first time in the 
territory of another Member State.' 
5. The following Annex Ha is inserted: 
'ANNEX Ha 
(Article 10a of the Regulation) 
A. BELGIUM 
(a) Allowances for disabled persons (Law of 27 June 
1969); 
(b) Guaranteed income for elderly persons (Law of 
1 April 1969); 
'(c) Guaranteed family benefits (Law of 20 July 1971). 
B. DENMARK 
None. 
C. GERMANY 
None. 
D. FRANCE 
(a) Supplementary allowance (National Solidarity 
Fund) (Law of 30 June 1956); 
(b) Special allowance (Law of 10 July 1952); 
(c) Allowance for handicapped adults (Law of 30 
June 1975). 
E. GREECE 
(a) Special benefits for elderly persons (Order of 
31 July 1981). 
F. IRELAND 
(a) Unemployment assistance; 
(b) Old age non-contributory pension; 
(c) Widow's non-contributory pension; 
(d) Orphan's non-contributory pension; 
No C 240/8 Official Journal of the European Communities 21.9. 85 
(e) Blind person's pension; 
(f) Disabled person's maintenance allowance; 
(g) Mobility allowance; 
(h) Infectious diseases maintenance allowance; 
(i) Allowance for parents of severely handicapped 
children; 
(j) Blind welfare allowance; 
(k) Maintenance allowance for persons undergoing 
rehabilitation. 
G. ITALY 
(a) Social pension for persons without means (Law 
No 153 of 30 April 1969); 
(b) Benefits for the civilian disabled or invalids (Law 
No 118 of 30 March 1974); 
(c) Pension for the deaf and dumb (Law No 381 of 
26 May 1970); 
(d) Pension for the blind (Law No 382 of 27 May 
1970). 
H. LUXEMBOURG 
(a) National Solidarity Fund benefits (Law of 30 July 
1960); 
(b) Compensatory cost of living allowance (Law of 
13 June 1975); 
(c) Special severe disablement allowance (Law of 
16 April 1979). 
I. NETHERLANDS 
None. 
J. UNITED KINGDOM 
(a) Mobility allowance (Social Security Act 1975 of 
20 March 1975, Section 37A); 
(b) Invalid care allowance (Social Security Act 1975 
of 20 March 1975, Section 37).' 
Article 2 
1. Application of the provisions of Article 1 of this 
Regulation shall not by itself have for effect the 
withdrawal of benefits granted prior to the entry into 
force of this Regulation by the competent institutions of 
the Member States in pursuance of the provisions of 
Title III of Regulation (EEC) No 1408/71, to which the 
provisions of Article 10 of that Regulation apply. 2. This Regulation shall not give rise to any rights in 
respect of any period prior to the date of its entry into 
force. 
3. Periods of residence, employment and self-
employment completed in the territory of a Member 
State prior to the date of entry into force of this Regu­
lation shall be taken into account in determining 
entitlement for the purposes of, and in accordance with, 
the provisions of this Regulation 
4. Subject to the provisions of paragraph 2, rights may 
arise by virtue of this Regulation notwithstanding that 
they relate to an event which materialized prior to the 
date of the entry into force of this Regulation. 
5. Any benefit, entitlement to which has been refused 
or suspended on grounds of the nationality of the 
claimant or beneficiary shall, upon the application of the 
same, be granted or reinstituted from the date of entry 
into force of this Regulation, except in those cases where 
the earlier claim to that benefit was settled by the award 
of a lump-sum payment. 
6. Rights of persons who have been granted pensions 
prior to the date of entry into force of this Regulation 
may, upon their application, be reviewed to take account 
of the provisions of this Regulation. 
7. If applications as referred to in paragraphs 5 and 6 
are submitted within two years from the date of entry 
into force of this Regulation, any rights to which they 
give rise under this Regulation shall take effect from 
the date of entry into force of this Regulation, 
notwithstanding any legislative provisions in any 
Member State concerning the forfeiture or limitation of 
rights which might otherwise apply to the person 
concerned. 
8. If an application as referred to in paragraphs 5 and 
6 is submitted after the expiry of a period of two years 
following the date of entry into force of this Regulation, 
rights which have not lapsed or become time-barred shall 
take effect from the date upon which the application is 
submitted, without prejudice to those provisions of the 
legislation of each Member State which are more 
favourable. 
Article 3 
This Regulation shall enter into force on the first day of 
the month following its publication in the Official Journal 
of the European Communities. 
This Regulation shall be binding in its entirety and 
directly applicable in all Member States.