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 and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71

(95/C 260/07)

(Text with EEA relevance)

COM(95) 352 final - 95/0196(CNS)

(Submitted by the Commission on 18 July 1995)

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 following consultation of 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 introduce certain amendments to Regulations (EEC) No 1408/71 (1) and (EEC) No 574/72 (2), as last amended by Regulation (EEC) No 1945/93 (3) and the Act of Accession of the Republic of Austria, the Republic of Finland and the Kingdom of Sweden in 1995 (4); whereas some of these amendments are linked to changes introduced by Member States to their social security legislation, with others being technical in nature and intended to complete the said Regulations;

Whereas it is necessary, given the fact that the nature of and the conditions for granting special adoption allowances are similar to those for childbirth allowances, to supplement Article 1 (u) (i) of Regulation (EEC) No 1408/71 in order to enable reference to be made to these in Section II of Annex II;

Whereas it appears necessary to enable seconded employed persons employed on the territory of several Member States or employed on the territory of a Member State in an undertaking having its registered place of business in another Member State and operating

across their shared frontier; self-employed workers in similar situations; seamen in comparable situations and persons benefitting from a derogation to the provisions of Articles 13 to 16 of Regulation (EEC) No 1408/71 by agreement between competent authorities, including civil servants and persons treated as such; and to members of their families accompanying them, to benefit from the provisions of Article 22 (1a) of Regulation (EEC) No 1408/71 for any situation in which benefits are required, provided that the stay is for occupational purposes;

Whereas it is necessary, for reasons of simplification and unification of the administrative regulations, to delete Article 32 of Regulation (EEC) No 1408/71;

Whereas it is necessary to amend the heading 'B. Denmark` of Annex I B to Regulation (EEC) No 1408/71 in order to specify the current definition of the expression 'members of the family`;

Whereas, in the light of the amendment to be introduced to Article 1 (u) (i) of Regulation (EEC) No 1408/71, the title of Section II of Annex II must be amended accordingly; whereas the headings 'A. Belgium` and 'E. France` of this Annex should be supplemented to take account respectively of the adoption premium and adoption allowance which have been introduced in the legislation of these Member States in relation to family benefits;

Whereas it is necessary to add to Annex II (a) to Regulation (EEC) No 1408/71, under the heading 'B. Denmark`, the accommodation allowance for retired persons, which constitutes a special non-contributory benefit within the meaning of paragraph 2 (a) of Article 4 of Regulation (EEC) No 1408/71;

Whereas it would appear advantageous to specify in Annex III A and B, No '35. Germany-Austria`, (e) to Regulation (EEC) No 1408/71, that the temporary application of the provisions of the bilateral agreement between Germany and Austria also remain valid in the event of a transformation of a pension;

Whereas the heading 'O. United Kingdom` of Annex IV C to Regulation (EEC) No 1408/71 should be amended to enable the competent United Kingdom authorities to renounce the pro rata calculation of the pension when this calculation does not give a result financially more favourable to the beneficiary;

Whereas, following changes in German legislation on this subject, it is necessary to adapt accordingly the heading 'C. Germany` of Annex VI to Regulation (EEC) No 1408/71;

Whereas it is also necessary to add an item to the heading 'L. Portugal` of Annex VI to Regulation (EEC) No 1408/71 in order that retired civil servants and members of their family may receive sickness and/or maternity benefits in kind in the event of immediate need during the course of a stay in the territory of another Member State or when travelling there to receive care appropriate to their state of health with the prior authorization of the competent Portuguese institutions;

Whereas it is necessary to insert a new Article 19 (a) in Regulation (EEC) No 574/72 in order to permit the administrative and financial implementation of the provision of benefits in kind in the event of a stay in the competent State of members of the family residing in a Member State other than that in which the employed or self-employed person resides;

Whereas, following an administrative reorganization in Austria, it is necessary to adapt accordingly the heading 'K. Austria` in Annexes 2, 3 and 4 to Regulation (EEC) No 574/72;

Whereas the items '4. Belgium-France`, '23. Denmark-Austria`, '41. France-Italy`, '82. Italy-United Kingdom` and '97. Austria-United Kingdom` of Annex V to Regulation (EEC) No 574/72 must be adapted to take account of agreements concluded by these Member States,

HAS ADOPTED THIS REGULATION:

Article 1

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

1. Article 1 (u) (i) is amended as follows:

'the terms "family benefits" means all benefits in kind or in cash intended to meet family expenses under the legislation provided for in Article 4 (1h), excluding the special childbirth or adoption allowances referred to in Annex II`.

2. The following Article 22 (a) is inserted after Article 22:

'Article 22a

Employment in a Member State other than the competent State - Stay in the State of employment

The employed or self-employed person referred to in Article 13 (2d), Article 14, Article 14 (a), Article 14 (b) or Article 17, and members of the family accompanying him, shall benefit from the provisions of Article 22 (1a) for any condition requiring treatment during a stay on the territory of the Member State in which the worker is employed or whose flag the vessel aboard which the worker is employed is flying`.

3. Article 32 is deleted.

4. At the end of the first paragraph of Article 36, the words 'without prejudice to the provisions of Article 32` are deleted.

5. In Annex I, section B, item 'B. Denmark`, the current text is replaced as follows:

'where it is decided whether, under the terms of the Regulation, a right to sickness or maternity benefits in kind exists pursuant to Articles 22 (1a) and 31 of the Regulation, the expression "member of the family" shall mean:

1. the spouse of an employed person, a self-employed person or other entitled person under the terms of the Regulation, in so far as they are not themselves entitled persons under the terms of the Regulation;

2. or a child under 18 years of age in the care of someone who is an entitled person under the terms of the Regulation`.

6. Section II of Annex II is amended as follows:

(a) A new title is inserted, replacing the previous title:

'Special childbirth or adoption allowances under the terms of Article 1 (u) (i);`

(b) the heading 'A. Belgium` is supplemented as follows: an item (b) is added after the current item, which becomes (a):

'(b) Adoption premium`;

(c) the heading 'E. France` is supplemented as follows: an item (b) is added after the current item, which becomes (a):

'(b) Adoption allowance`.

7. In Annex II (a), section B, heading 'B. Denmark` the word 'none` should be replaced as follows:

'accommodation expenses for pensioners (Law on individual accommodation assistance, consolidated by Law No 704 of 22 July 1994)`.

8. In Annex III and B, heading '35. Germany-Austria`, (e), the full stop after the words 'begun prior to 31 December 1994` is replaced by a semi-colon, followed by a new line and the addition in question, which relates to both items (i) and (ii);

'this shall also apply to periods during which another pension, including a survivor's pension, was collected, replacing the initial one, where the periods of collection follow each other without interruption`.

9. In Annex IV C, the text of the heading 'O. United Kingdom` is replaced by the following text:

'all applications for retirement and widow's pension determined pursuant to the provisions of Title III, Chapter III of the Regulation, with the exception of those for which:

(a) during a tax year beginning on or after 6 April 1975:

(i) the party concerned had completed periods of insurance, employment or residence under the legislation of the United Kingdom and of another Member State; and

ii) one (or more) of the tax years referred to in (i) was not considered a qualifying year within the meaning of the legislation of the United Kingdom;

(b) the periods of insurance completed under the legislation in force in the United Kingdom for the periods prior to 5 July 1948 would be taken into account for the purposes of Article 46 (2) of the Regulation by application of the periods of insurance, employment or residence under the legislation of another Member State`.

10. Annex VI is amended as follows:

(a) Item 2 (a) of the heading 'C. Germany` is deleted. Item 2 (b), which becomes item 2 (a), is replaced by the following text:

'2(a) The standard period for allocation shall be determined exclusively with reference to German periods`.

Item 2 (c), which becomes item 2 (b), is replaced by the following:

'2(b) For the allocation of periods governed by German pension law to German insurance classes, only German legislation shall apply`.

Item 2 (d) becomes item 2 (c) and item 2 (e) is deleted.

Items 3 and 4 are deleted. In item 5, which becomes item 3, the words 'National Federation of Local Sickness Funds` shall be replaced by the words 'National Federation of Local General Funds`.

The first paragraph of item 7, which becomes item 4, is replaced by the following text:

'4. Article 7 of Book VI of the Social Code shall apply to nationals of the other Member States and to stateless persons and refugees residing in the territory of other Member States, according to the following rules:`.

Indent (c) of this item is replaced by the following text:

'If the party concerned is a national of another Member State, has his domicile or residence in the territoy of a third Member State, has contributed for at least 60 months to the German pension insurance scheme or was eligible for voluntary insurance under the provisions of Article 232 of Book VI of the Social Code, and is not compulsorily or voluntarily insured under the legislation of another Member State`.

Items 9, 10 and 11 become items 5, 6 and 7 respectively. Item 12, which becomes item 8, is replaced by the following text:

'Periods of compulsory insurance completed under the legislation of another Member State, either under a special scheme for craftsmen or, if no such scheme exists, under a special scheme for self-employed persons or under the general scheme, shall be taken into account to justify the existence of the 18 years of compulsory contributions required for exemption from compulsory affiliation to pension insurance for self-employed craftsmen`.

Items 13 and 14 become items 9 and 10. Item 16, which becomes item 11, is replaced by the following text:

'11. Greek teachers who have civil servant status and who, by the fact that they have taught in German schools, have contributed to the compulsory German pension insurance scheme as well as to the special Greek civil servant scheme and who ceased to be covered by compulsory German insurance after 31 December 1978 may, on request, have the compulsory contributions reimbursed in accordance with Article 210 of Book VI of the Social Code. Applications for reimbursement of contributions are to be introduced during the course of the year following the date of entry into force of this provision. The party concerned may also pursue his claim within the six calendar months following the date on which he ceased to be subject to compulsory insurance.

Article 210 of Book VI of the Social Code shall only apply with regard to the periods during which compulsory contributions to the pension insurance scheme were paid in addition to contributions to the special Greek civil servant scheme and with regard to the allocation periods immediately following the periods during which these compulsory contributions were paid`.

Items 17, 18 and 19 become items 12, 13 and 14 respectively. Following the latter, a new item 15 is inserted, with the following text:

'15. Where the provisions of German pension law in force on 31 December 1991 apply, the provisions of Annex VI shall also apply in the version thereof in force on 31 December 1991`.

b) In the heading 'L. Portugal`, the following item 3 is added:

'3. Serving or retired civil servants, and members of their families, covered by a special health care scheme, may receive sickness and maternity benefits in kind in the event of immediate need during a stay in the territory of another Member State or when travelling there to receive care appropriate to their state of health with the prior authorization of the competent Portuguese institution, in accordance with the procedures laid down in Articles 31 (a) and 22 (1a) and (c) and (3) of Regulation (EEC) No 1408/71, under the same conditions as employed and self-employed persons covered by the general social security scheme`.

Article 2

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

1. The following Article 19 (a) is inserted after Article 19:

'Application of the second indent of Article 21 (2) of the Regulation

Article 19 (a)

Benefits in kind in the event of a stay in the competent State - Members of the family resident in the Member State other than that in which the employed or self-employed person resides

1. In order to receive benefits in kind under the terms of Article 21 of the Regulation, members of the family shall present to the institution at the place of stay a certificate stating that they are entitled to the said benefits. This certificate, which shall be provided by the institution of the place of residence of the members of the family, if possible prior to their leaving the territory of the Member State on which they reside, shall, in particular, indicate where appropriate the maximum period for granting benefits in kind, as laid down by the legislation of that Member State. If the members of the family do not present the said certificate, the institution at the place of stay shall contact the institution of the place of residence in order to obtain it.

2. The provisions of Article 17 (6, 7 and 9) of the implementing Regulation shall apply by analogy. In this case, the institution of the place of residence of the members of the family shall be considered the competent institution`.

2. Annex 2 is amended as follows:

in items 3 (a) and 4 (b) of the heading 'K. Austria`, the words 'Arbeitsamt (Employment Office)` are replaced by the words 'Regionale Geschaeftsstellen des Arbeitsmarktservice (Local Office of the Labour Market Service)`.

3. Annex 3 is amended as follows:

in items 4 and 5 (b) of the heading 'K. Austria`, the words 'Arbeitsamt (Employment Office)` are replaced by the words 'Regionale Geschaeftsstellen des Arbeitsmarktservice (Local Office of the Labour Market Service)`.

4. Annex 4 is amended as follows:

in the heading 'K. Austria`:

(i) in item 2 (a), the words 'Landesarbeitsamt Salzburg (Provincial Employment Office Salzburg), Salzburg` are replaced by the words 'Landesgeschaeftsstelle Salzburg des Arbeitsmarktservice (Regional Office of the Labour Market Service Salzburg), Salzburg`;

(ii) in item 2 (b) and 3 (b), the words 'Landesarbeitsamt Wien (Provincial Employment Office Vienna), Wien` are replaced by the words 'Landesgeschaeftsstelle Wien des Arbeitsmarktservice (Regional Office of the Labour Market Service Vienna), Wien`.

5. Annex 5 is amended as follows:

(a) in item '4. Belgium-France`, the following item (i) is added:

'(i) The exchange of letters of 21 November 1994 and 8 February 1995 concerning the procedures for the settlement of reciprocal claims pursuant to Articles 93, 94, 95 and 96 of the implementing Regulation`;

(b) in item '23. Denmark-Austria`, the word 'none` is replaced by the following text:

'Agreement of 13 February 1995 concerning the reimbursement of expenditure in the field of social security`;

(c) in item '41. France-Italy`, the following item (c) is added:

'(c) The supplementary exchange of letters of 22 March and 15 April 1994 concerning the procedures for the settlement of reciprocal debts under the terms of Articles 93, 94, 95 and 96 of the implementing Regulation`.

(d) in item '82. Italy-United Kingdom`, the word 'none` is replaced by the following text:

'The exchange of letters of 1 and 16 February 1995 concerning Articles 36 (3) and 63 (3) of the Regulation (reimbursement or waiving of reimbursement of expenditure for benefits in kind) and Article 105 (2) of the implementing Regulation (waiving of reimbursement of the costs of administrative checks and medical examinations)`;

(e) in item '97. Austria-United Kingdom`, the following item should be added:

'(c) Agreement of 30 November 1994 concerning the reimbursement of expenditure for social security benefits`.

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 No L 149, 5. 7. 1971, p. 2.

(2) OJ No 74, 27. 3. 1972, p. 1.

(3) OJ No L 181, 23. 7. 1993, p. 1.

(4) OJ No L 1. 1. 1995, p. 1.