Proposal for a Council Regulation (EC) 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 and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (Miscellaneous amendments 1998) (98/C 325/05) (Text with EEA relevance) COM(1998) 547 final - 98/0285(CNS)

(Submitted by the Commission on 30 September 1998)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 51 and 235 thereof,

Having regard to the proposal from the Commission, presented 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 appropriate to make certain amendments to Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (1) and (EEC) No 574/72 of 21 March 1972 laying down the procedure for implementing Regulation (EC) 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 (2); whereas these amendments are linked to changes which Member States have made to their social security legislation;

Whereas the application of Chapter 8 to orphan's pensions raises problems of interpretation and administration, and it is in the interests of the persons concerned for orphan's pensions to be calculated in accordance with the provisions of Chapter 3 of Title III, rather than on the basis of the provisions of Chapter 8;

Whereas it seems appropriate to amend section 'L. PORTUGAL` of Annex IIa in order to take into account the changes made to Portuguese legislation;

Whereas a new point should be added to section 'G. IRELAND` and another to section 'O. UNITED KINGDOM` of Annex VI in order to take into account the specific rules of priority in the event of accumulation of entitlement to family allowances under United Kingdom and Irish legislation through the exercising of a professional activity in the territory of one of those two Member States;

Whereas the provisions contained in the Annex to Regulation (EEC) No 574/72 have no direct influence on the determination of the rights of individuals;

Whereas it should be possible for all the Annexes to Regulation (EEC) No 574/72 to be amended by a Regulation adopted by the Commission at the request of the Member State or Member States concerned or their competent authorities, after the opinion of the Administrative Commission has been obtained; whereas in actual fact the purpose of amending these Annexes is simply to incorporate into a Community instrument decisions taken by the Member States concerned or their competent authorities;

Whereas it is necessary to amend section '43. SPAIN - ITALY` of Annex 5 to Regulation (EEC) No 574/72;

Whereas, as a result of the administrative reorganisation in France concerning the examination of applications for the extension of postings or special postings, section 'E. FRANCE` of Annex 10 to Regulation (EEC) No 574/72 should be amended accordingly;

Whereas, in order to attain the objective of free movement for workers in the field of social security, it is necessary and appropriate to amend the rules relating to the coordination of national social security schemes through a Community legal instrument that is binding and directly applicable in each Member State;

Whereas this is consistent with the provisions of the third paragraph of Article 3b of the Treaty,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 1408/71 is amended as follows:

1. Article 44(3) is replaced by the following:

'3. This Chapter shall not apply to increases in or supplements to pensions in respect of children granted in accordance with the provisions of Chapter 8`.

2. Article 78(1) is replaced by the following:

'1 The term "benefits", for the purposes of this Article, means family allowances and, where appropriate, supplementary or special allowances for orphans`.

3. Article 79(1) is replaced by the following:

'1. Benefits, within the meaning of Articles 77 and 78, shall be provided in accordance with the legislation determined by applying the provisions of those Articles by the institution responsible for administering such legislation and at its expense, as if the pensioner or the deceased had been subject only to the legislation of the competent State. However, if that legislation provides that the acquisition, retention or recovery of the right to benefits shall be dependent on the length of periods of insurance, employment, self-employment or residence, such length shall be determined taking into account, where appropriate, the provisions of Article 45 or, as the case may be, Article 72`.

4. In Annex IIa, section 'L. PORTUGAL` is replaced by the following:

'L. PORTUGAL

(a) non-contributory family allowance for children and young persons and the associated additional sum payable for disability (Decree Law No 160/80 of 27 May 1980, as amended by Decree Law No 133-C/97 of 30 May 1997);

(b) non-contributory allowance for attending as special eductional establishment (Decree Law No 160/80 of 27 May 1980, as amended by Decree Law No 133-C/97 of 30 May 1997);

(c) non-contributory orphan's pension (Decree Law No 160/80 of 27 May 1980, as amended by Decree Law No 133-C/97 of 30 May 1997);

(d) non-contributory State old-age and invalidity pension (Decree Law No 464/80 of 13 October 1980);

(e) non-contributory allowance for care provided by a third party (Decree Law No 160/80 of 27 May 1980, as amended by Decree Law No 133-C/97 of 30 May 1997);

(f) non-contributory widow's pension (Regulatory Decree No 52/81 of 11 November 1981)`.

5. Annex VI is amended as follows:

(a) the following point is added to section 'G. IRELAND`:

'11. Entitlement to family income supplement granted solely under the legislation of Ireland shall be suspended where, over the same period and in respect of the same member of the family, family benefits are payable solely under the legislation of the United Kingdom or up to the amount of those benefits pursuant to Articles 73, 74, 77 or 78 of the Regulation`;

(b) the following point is added to section 'O. UNITED KINGDOM`:

'21. Entitlement to family credit granted solely under the legislation of the United Kingdom shall be suspended, where, over the same period and in respect of the same member of the family, family benefits are payable solely under the legislation of Ireland or up to the amount of those benefits pursuant to Articles 73, 74, 77 or 78 of the Regulation`.

Article 2

Regulation (EEC) No 574/72 is amended as follows:

1. Article 122 is replaced by the following:

'Article 122

Special provisions concerning the amendment of the Annexes

The Annexes to the implementing Regulation may be amended by a Commission Regulation at the request of the Member State or Member States concerned or their competent authorities, and after the opinion of the Administrative Commission has been obtained`.

2. Annex 5 is amended as follows:

(a) under heading '43. SPAIN - ITALY`, the word 'None` is replaced by the following:

'The Agreement of 21 November 1997 concering Article 36(3) of the Regulation (reimbursement of sickness and maternity benefits in kind) and Articles 93, 94, 95, 100 and 102(5) of the implementing Regulation (procedures for the refund of sickness and maternity insurance benefits and late claims).`

3. Annex 10 is amended as follows:

In section 'E. FRANCE`, point 5 is replaced by the following:

'5. For the purposes of applying Article 14(1)(b), Article 14a(1)(b) and Article 17 of the Regulation:

Centre de sécurité sociale des travailleurs migrants (Centre for the Social Security of Migrant Workers), Paris`.

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.

(1) OJ L 149, 5.7.1971, p. 2. Regulation as updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997) and last amended by Regulation (EC) No 1606/98 (OJ L 209, 25.7.1998).

(2) OJ L 74, 27.3.1972, p. 1. Regulation as updated by Regulation (EC) No 118/97 (OJ L 28, 30.1.1997) and last amended by Regulation (EC) No 1290/97 (OJ L 176, 4.7.1997).