Wednesday 9 July 2008

Coordination of social security systems ***I

P6_TA(2008)0348

European Parliament legislative resolution of 9 July 2008 on the proposal for a regulation of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (COM(2006)0016 — C6-0037/2006 — 2006/0006(COD))

2009/C 294 E/49

(Codecision procedure: first reading)

The European Parliament,

having regard to the Commission proposal to the European Parliament and the Council (COM(2006)0016),

having regard to Article 251(2) and Articles 42 and 308 of the EC Treaty, pursuant to which the Commission submitted the proposal to Parliament (C6-0037/2006),

having regard to Rule 51 of its Rules of Procedure,

having regard to the report of the Committee on Employment and Social Affairs and the opinion of the Committee on Women's Rights and Gender Equality (A6-0251/2008),

Calls on the Commission to refer the matter to Parliament again if it intends to amend the proposal substantially or replace it with another text;

Wednesday 9 July 2008

P6_TC1-COD(2006)0006

Position of the European Parliament adopted at first reading on 9 July 2008 with a view to the adoption of Regulation (EC) No …/2008 of the European Parliament and of the Council laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems and repealing Regulation (EEC) No 574/72

(Text with relevance for the EEA and for Switzerland)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,

Having regard to Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems (1), and in particular Article 89 thereof,

Having regard to the proposal from the Commission ║,

Having regard to the opinion of the European Economic and Social Committee (2),

Acting in accordance with the procedure laid down in Article 251 of the Treaty (3),

Whereas:

(1) Regulation (EC) No 883/2004 modernises the rules on the coordination of Member States’ social security systems, specifying the measures and procedures for implementing it and simplifying them for all players involved. Implementing rules should be laid down.

(2) Closer and more effective cooperation between social security institutions is a key factor in allowing the persons covered by Regulation (EC) No 883/2004 to access their rights as quickly as possible and under optimum conditions.

(3) Electronic communication is a suitable means of rapid and reliable data exchange between Member States’ institutions. Processing ║ data electronically should help to speed up the procedures for everyone involved. The persons concerned must also benefit from all of the guarantees provided for in the Community provisions on the protection of natural persons with regard to the processing and free movement of personal data. Member States should therefore take the necessary measures to ensure that data relating to national social security legislation covered by Regulation (EC) No 883/2004 is adequately dealt with in accordance with the protection of individuals with regard to the processing of personal data and its exchange in the context of this Regulation .

(4) Availability of the details (including electronic details) of those national bodies likely to be involved in implementing Regulation (EC) No 883/2004, in a form which allows them to be updated in real time, should facilitate exchanges between Member States’ institutions. This approach, which focuses on the relevance of purely factual information and its immediate accessibility to citizens, is a valuable simplification which is to be introduced by this Regulation.

(5) Achieving the smoothest possible operation and efficient management of the complex procedures implementing the rules on the coordination of social security systems requires a system for the immediate updating of Annex IV. The preparation and application of provisions to that effect calls for close cooperation between the Member States and the Commission and their implementation should be carried out rapidly, in view of the consequences of delays for citizens and administrative authorities alike. The Commission should therefore be empowered to establish and manage a database and ensure that it is operational at least from the date of entry into force of this Regulation. The Commission should, in particular, take the necessary steps to integrate into that database the information listed in Annex IV .

(6) Strengthening certain procedures should ensure greater legal certainty and transparency for the users of Regulation (EC) No 883/2004. For example, setting common deadlines for fulfilling certain obligations or completing certain administrative tasks should assist in clarifying and structuring relations between insured persons and institutions.

(7) ║Member States, their competent authorities and the social security institutions must have the option of agreeing among themselves on simplified procedures and administrative arrangements which they consider to be more effective and suitable to the circumstances of their respective social security systems. However, such arrangements must not affect the rights of those covered by Regulation (EC) No 883/2004.

(8) The inherent complexity of the field of social security requires all institutions of the Member States to make a particular effort to support insured persons in order to avoid penalising those who have not submitted their claim or certain information to the institution responsible for processing this application in accordance with the rules and procedures set out in Regulation (EC) No 883/2004 and in this Regulation.

(9) To determine the competent institution, namely the one whose legislation applies or which is liable for the payment of certain benefits, the circumstances of the insured person and those of the family members must be examined by the institutions of one or more Member States. To ensure that the person concerned is protected for the duration of the necessary communication between institutions, provision should be made for provisional membership of a social security system.

(10) Member States should cooperate to determine the place of residence of persons to whom this Regulation and Regulation (EC) No 883/2004 apply and, in the event of a dispute, should take into consideration all relevant criteria to resolve the matter. To this end, Member States may take into account the relevant provisions of this Regulation.

(11) Many measures and procedures provided for in this Regulation are intended to ensure greater transparency concerning the criteria which the institutions of the Member States must apply under Regulation (EC) No 883/2004. They are the result of the case-law of the Court of Justice of the European Communities, the decisions of the Administrative Commission and the experience of more than thirty years of application of the coordination of social security systems in the context of the fundamental freedoms enshrined in the Treaty.

(12) This Regulation provides for measures and procedures to promote the mobility of employees and unemployed persons. Frontier workers who have become wholly unemployed may make themselves available to the employment services in both their country of residence and the Member State where they were last employed. However, they should be entitled to benefits only from their Member State of residence.

(13) Extending the scope of Regulation (EC) No 883/2004 to all insured persons, including the non-working population, requires certain specific rules and procedures for these persons, notably to define the legislation applicable for taking account of periods which persons who have never been employed or self-employed in the various Member States in which they have been resident have devoted to bringing up children.

(14) Certain procedures must also reflect the need for a balanced sharing of costs between Member States. In particular in the area of sickness, these procedures must take account of the position of Member States which bear the costs of allowing insured persons access to their healthcare system and the position of Member States whose institutions bear the cost of benefits in kind received by their insured persons in a Member State other than that in which they are resident.

(15) In the specific context of Regulation (EC) No 883/2004, it is necessary to clarify the conditions for meeting the costs of sickness benefits in kind as part of scheduled treatments, namely treatments for which an insured person goes to a Member State other than that in which he/she is insured or resident. The obligations of the insured person with regard to the application for prior authorisation should be specified, as should the institution's obligations towards the patient with regard to the conditions of authorisation. The consequences for the chargeability of the costs of care received in another Member State on the basis of an authorisation should also be clarified.

(16) More binding procedures to reduce the time needed for payment of these claims between Member States’ institutions are essential in order to maintain confidence in the exchanges and meet the need for sound management of Member States’ social security systems. Procedures for the processing of claims relating to sickness and unemployment benefits must therefore be strengthened.

(17) Because the social security schemes covered by Regulation (EC) No 883/2004 are based on solidarity between all insured persons, provision should be made for mechanisms to ensure more effective recovery of claims relating to benefits not due or contributions not paid. Procedures for mutual assistance between institutions must be clarified in line with the provisions laid down in Council Directive 2008/55/EC of 26 May 2008 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures (4) so as to better protect the financial interests of the Member States by organising cooperation, especially between tax authorities.

(18) Informing insured persons of their rights and obligations is a crucial component of a relationship of trust with the competent authorities and the Member States’ institutions.

(19) Given that the objective of this Regulation, namely the adoption of coordination measures to guarantee the effective exercise of free movement of persons, cannot be sufficiently achieved by the Member States and can therefore ║, be better achieved at Community level, the Community may take action in accordance with the subsidiarity principle enshrined in Article 5 of the Treaty. In accordance with the proportionality principle set out in the above Article, this Regulation does not go beyond what is necessary to achieve the objective.

(20) This Regulation should replace 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 (5).

HAVE ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

Chapter I

Definitions

Article 1

Definitions

1. For the purposes of this Regulation:

(a) ‘the basic Regulation’ shall mean Regulation (EC) No 883/2004;

(b) ‘the implementing Regulation’ shall mean this Regulation; and

(c) the definitions set out in the basic Regulation shall apply.

2. In addition to the definitions referred to in paragraph 1, for the purposes of this Regulation:

(a) ‘access point’ shall mean any body designated as an electronic contact point ║by the competent authority of a Member State for one or more branches of social security referred to in Article 3 of the basic Regulation to send and receive electronically the data necessary for the application of the basic Regulation and the implementing Regulation via the joint network ▐ between the ▐ Member States;

(b) ‘liaison body’ shall mean any body designated by the competent authority of a Member State for one or more branches of social security referred to in Article 3 of the basic Regulation to respond to requests for information and assistance for the purposes of the application of the basic Regulation and the implementing Regulation and which has to fulfil the tasks assigned to it under Title IV of the implementing Regulation;

(c) ‘document’ shall mean a set of data, irrespective of the medium used, structured in such a way that it can be exchanged electronically and which must be communicated to enable the operation of the basic Regulation and the implementing Regulation;

(d) ‘standardised electronic message’ shall mean any structured document in a format designed for the electronic exchange of information between Member States ;

(e) ‘transmission by electronic means’ shall mean transmission using electronic equipment for processing (including digital compression) of data and employing wires, radio transmission, optical technologies or any other electromagnetic means;

(f) ‘Technical Commission’ shall mean the body referred to in Article 73 of the basic Regulation;

(g) ‘Audit Board’ shall mean the body referred to in Article 74 of the basic Regulation.

Chapter II

Provisions concerning cooperation and exchanges of data

Article 2

Scope and rules for exchanges between institutions

1. For the purposes of the implementing Regulation, exchanges between Member States’ authorities and institutions and persons covered by the basic Regulation shall be based on the principles of public service, objectivity, cooperation, active assistance, efficiency, accessibility for disabled people and rapid delivery. ▐

2. The ▐ institutions shall provide or exchange, within the deadlines prescribed by the social security legislation of the Member State in question, all data necessary for establishing and determining the rights and obligations of persons to whom the basic Regulation applies. Such data shall be transferred between Member States directly by the institutions themselves or indirectly via the liaison bodies.

3. Where a person has mistakenly submitted information, documents or claims to an institution in the territory of a Member State other than that in which the institution designated in accordance with the implementing Regulation is situated , the information, documents or claims shall be resubmitted without delay by the former institution to the institution designated in accordance with the implementing Regulation, indicating the date on which they were initially submitted. This date shall be binding on the latter institution. Member States’ institutions shall not, however, be held liable, or be deemed to have taken a decision by virtue of their failure to act, where this is a result of the late transmission of information, documents or claims by other Member States’ institutions.

▐

4. Where data are transferred indirectly via the access point or the liaison body, this access point or liaison body shall be regarded as fulfilling the role and function of the competent institution in this Member State with regard to time-limits for responding to claims submitted.

Article 3

Scope and rules for exchanges between beneficiaries and institutions

1. Persons covered by the basic Regulation shall be required to forward to the relevant institution the information , documents or supporting evidence necessary to establish their situation or that of their families , to establish or maintain their rights and obligations and to determine the applicable legislation and their obligations under it.

▐

2. When collecting, transmitting or processing personal data pursuant to its legislation for the purposes of implementing the basic Regulation, each Member State shall ensure that the persons concerned are able fully to exercise their rights regarding personal data protection , in accordance with Community provisions on the protection of individuals with regard to the processing of personal data and the free movement of such data.

In particular, Member States shall guarantee that such personal data is not used for purposes other than those of social security except where expressly so authorised by the person concerned. Member States shall also, upon request, provide the persons concerned with specific and adequate information on the processing of their personal data required for the purposes of this Regulation.

The persons concerned shall be able to exercise their rights as data subjects in the areas covered by this Regulation through the competent institution, irrespective of the origin of the data.

The list and contact details of the personal data protection officers, who are appointed in each Member State in accordance with Article 18 of Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data (6) , and who deal with data related to social security legislation covered under the basic Regulation shall constitute part of Annex IV to the implementing Regulation.

3. To the extent necessary for the application of the basic Regulation and the implementing Regulation, the relevant institutions shall forward ▐ the information and issue the ▐ documents to the persons concerned within the deadlines prescribed by the social security legislation of the Member State in question .

4. The competent institution of a Member State which directly sends a document containing a decision on the rights of a person residing or staying in the territory of another Member State shall request an acknowledgement of receipt, irrespective of the medium or the method of dispatch used. The acknowledgement of receipt may be given using any medium and in any form.

5. In the absence of proof that the decision referred to in paragraph 4 has been sent, the time-limits relating to the forfeiture or limitation of rights acquired under the basic Regulation shall not be invoked against the beneficiaries.

6. Where the date on which the decision referred to in paragraph 4 was sent is duly established, the decision of the competent institution shall be held to be invoked against the person concerned within a month of that date. However, if the legislation of the Member State which made the decision provides for a longer time-limit, that time-limit shall apply.

7. In any event, the person concerned shall be entitled to the remedies and procedures provided for in the legislation applied by the institution responsible for the decision.

▐

Article 4

Format and method of exchanging data

1. The Administrative Commission shall lay down the structure, content , format and methods of exchange of ║ documents and ▐ standardised electronic messages.

2. The transmission of data between the institutions, the access points or the liaison bodies shall be carried out by electronic means under a common secure framework that can guarantee the confidentiality and protection of exchanges of data.

3. In their communications with the persons concerned , the relevant institutions shall use the modalities appropriate to each case, favouring the use of electronic means as far as possible. The Administrative Commission shall lay down the practical arrangements for sending information, documents or decisions by electronic means to the person concerned.

Article 5

Legal value of documents and supporting documents issued in another Member State

1. Documents issued by the institution of a Member State ║and showing the position of a person for the purposes of the application of the basic Regulation and of the implementing Regulation, and supporting documents issued by the authorities of another Member State, including the taxation authorities, shall be accepted by the institutions of the other Member States provided they have not been withdrawn or declared to be invalid by the competent authority or institution of the Member State in which they were issued.

2. Where there is doubt about the validity of a document or the accuracy of the facts on which the particulars contained therein are based, the receiving institution shall ask the issuing institution ║for the necessary clarification and, where appropriate, the withdrawal of that document. The issuing institution shall reconsider the grounds for issuing the document and, if necessary, withdraw it.

3. Where no agreement is reached between the institutions concerned one month after the date on which the receiving institution ║ submitted its request, the matter may be brought before the Administrative Commission in accordance with Article 76(6) of the basic Regulation in order to reconcile the points of view within six months of the date on which the matter was brought before it.

Article 6

Provisional application of legislation and provisional payment of benefits

1. Unless otherwise provided for in the implementing Regulation, where there is a difference of views between the institutions or authorities of two or more Member States concerning the determination of the applicable legislation, ▐ the person concerned shall be made provisionally subject to the legislation of one of those Member States, the order of priority being determined as follows :

(a) the legislation of the Member State where the person actually pursues his/her employment or self-employment if the employment or self-employment is pursued in only one Member State; or

(b) the legislation of the Member State of residence when the person concerned performs part of his/her activity/activities there or when the person is not employed or self employed; or

(c) the legislation of the Member State concerned the application of whose legislation was first requested , where the person pursues an activity or activities in two or more Member States .

2. Where there is a difference of views between the competent institutions or authorities of two or more Member States about which institution should provide the benefits, the person concerned who could claim benefits if there was no dispute shall be entitled, on a provisional basis, to the benefits foreseen by the legislation applied by the institution of his/her place of residence or, if that person does not reside on the territory of one of the Member States concerned, to the benefits foreseen by the legislation applied by the institution to which the application was first submitted.

3. Where no agreement is reached between the institutions or authorities concerned, the matter may be brought before the Administrative Commission by the competent authorities no earlier than one month after the date on which the difference of views as mentioned in paragraph 1 or 2 arose. The Administrative Commission shall seek to reconcile the points of views within six months of the date on which the matter was brought before it.

4. Where it is established either that the applicable legislation is not that of the Member State of provisional membership, or ║the institution which provisionally granted the benefits ║ was not the competent institution, the institution identified as being competent shall be deemed retroactively to have been so , as if that difference of views had not existed, at the latest from either the date of provisional membership or of the first provisional granting of the benefits concerned.

5. If necessary, the competent institution shall settle the financial situation of the person concerned as regards contributions and cash benefits paid provisionally, where appropriate, on the basis of the arrangements laid down in Articles 71 to 81 of the implementing Regulation .

Provisional benefits in kind granted under paragraph 2 shall be reimbursed by the competent institution in accordance with Title IV of the implementing Regulation.

Article 7

Obligation of provisional award

1. Unless otherwise provided for in the implementing Regulation, where a person is either eligible for a benefit or liable to pay a contribution in accordance with the basic Regulation, and the competent institution does not have all the information concerning the situation in another Member State that is necessary to calculate definitively the amount of that benefit or contribution , that institution shall award this benefit on request of the person concerned or calculate this contribution on a provisional basis , if such a calculation is possible on the basis of the information at the disposal of the institution .

2. The benefit or the contribution concerned shall be recalculated as soon as the documentary evidence is provided to the institution concerned.

Chapter III

Other general provisions for the application of the basic Regulation

Article 8

Administrative arrangements between two or more Member States

1. The provisions of this Regulation shall replace ║the arrangements for the application of the conventions referred to in Article 8 (1) of the basic Regulation, except the provisions concerning the arrangements for the conventions referred to in Annex II of the basic Regulation, provided that the provisions of the said arrangements are included in Annex I of the implementing Regulation.

2. The Member States may conclude among themselves, if necessary, arrangements pertaining to the application of conventions referred to in Article 8(2) of the basic Regulation provided that these arrangements do not adversely affect the rights and obligations of the persons concerned and are included in Annex I to the implementing Regulation .

Article 9

Other procedures between institutions

1. Two or more Member States, or their competent authorities, ▐ may agree ║procedures other than those foreseen by the implementing Regulation , provided that these procedures do not adversely affect the rights or obligations of the persons concerned .

2. Any agreements concluded to that end shall be notified to the Administrative Commission and listed in Annex I to this Regulation.

Article 10

Prevention of overlapping of benefits

When benefits due under the legislation of two or more Member States are mutually reduced, suspended or withdrawn, any amounts that would not be paid in the event of strict application of the rules concerning reduction, suspension or withdrawal laid down by the legislation of the Member States concerned shall be divided by the number of benefits subjected to reduction, suspension or withdrawal.

Article 11

Elements for determining residence

1. Where there is a difference of views between the institutions of two or more Member States about the determination of the residence of a person to whom the basic Regulation applies , these institutions shall establish by common accord the centre of interests of the person concerned, based on an overall assessment of all available and relevant information, which may include, as appropriate :

(a) the duration and continuity of presence on the territory of the Member States concerned ;

(b) personal circumstances, including: (i) the nature and the specific characteristics of any activity pursued, in particular the place where such activity is habitually pursued, the stability of the activity, and the duration of any work contract; (ii) his/her family status and family ties; (iii) the exercise of any non-remunerated activity; (iv) in the case of students, the source of their income; (v) his/her housing situation, in particular how permanent it is; (vi) the Member State in which the person is deemed to reside for taxation purposes .

2. Where consideration of the various criteria based on relevant facts as set out in paragraph 1 does not lead to agreement between the institutions concerned , the person's intention , as appears from the facts and circumstances of the case, especially the reasons that led the person to move, shall be considered to be decisive for establishing his/her actual place of residence.

Article 12

Aggregation of periods

1. For the purposes of applying Article 6 of the basic Regulation, the competent institution shall contact the institutions of the Member States to whose legislation the person concerned has also been subject, in order to determine all the periods ▐ completed under this legislation

2. The periods of insurance , employment, self-employment or residence completed under the legislation of a Member State shall be added to those completed under the legislation of any other Member State, insofar as it is necessary for the purposes of applying Article 6 of the basic Regulation , provided that these periods do not overlap.

3. Where a period of compulsory insurance or residence ║completed ║ under the legislation of a Member State coincides with a period of voluntary or continued optional insurance ║ under the legislation of another Member State, only the period of compulsory insurance shall be taken into account.

4. Where a period of insurance or residence other than an equivalent period completed under the legislation of a Member State coincides with an equivalent period on the basis of the legislation of another Member State, only the period other than an equivalent period shall be taken into account.

5. Any period regarded as equivalent under the legislation of two or more Member States shall be taken into account only by the institution of the Member State to whose legislation the insured person was last compulsorily subjected before the said period. In the event that the insured person was not compulsorily subjected to the legislation of a Member State before the said period, the latter shall be taken into account by the institution of the Member State to whose legislation the insured person was compulsorily subjected for the first time after the said period.

6. In the event that ║certain periods of insurance or residence ║completed under the legislation of a Member State cannot be determined precisely, it shall be presumed that these periods do not overlap with periods of insurance or residence completed under the legislation of another Member State, and account shall be taken thereof , where advantageous to the person concerned, insofar as they can reasonably be taken into consideration.

7. Where periods of insurance or residence are not taken into account under this Article because other periods that do not qualify for the benefit concerned take precedence, the periods not taken into account shall not lose their effect under national legislation, as regards the acquisition, retention or recovery of the right to benefits.

Article 13

Rules for conversion of periods of insurance

Where periods of insurance completed under the legislation of a Member State are expressed in ║units different to those ║ of another Member State, the conversion needed for the purpose of aggregation shall be carried out under the following rules:

(a) one day shall be equivalent to eight hours, and vice versa;

(b) five days shall be equivalent to one week, and vice versa;

(c) 22 days shall be equivalent to one month, and vice versa;

(d) three months or thirteen weeks or sixty-six days shall be equivalent to one quarter, and vice versa;

(e) for the conversion of weeks into months and vice versa, weeks and months shall be converted into days;

(f) the application of points (a) to (e) may not lead to the admission, for all the periods of insurance completed in a calendar year, of a total exceeding 264 days or 52 weeks or 12 months or four quarters.

Where the periods of insurance completed under the legislation of a Member State are expressed in months, the days that correspond to a fraction of a month, in accordance with the conversion rules set out in the first subparagraph, shall be considered to be a full month.

TITLE II

DETERMINATION OF THE LEGISLATION APPLICABLE

Article 14

Details relating to Articles 12 and 13 of the basic Regulation

1. For the purposes of the application of Article 12(1) of the basic Regulation, a ‘person who pursues an activity as an employed person in a Member State on behalf of an employer … and who is posted by that employer to another Member State’ shall include a person who is recruited with a view to being posted to another Member State, provided that, immediately before commencing his/her employment, the person concerned is already subject to the legislation of the Member State in which his/her employer is established.

2. For the purposes of the application of Article 12(1) of the basic Regulation, the words ‘which normally carries out its activities there’ shall refer to an employer that ordinarily performs substantial activities, other than purely internal management activities, in the territory of the Member State in which it is established, taking account of all criteria characterising the activities carried out by the undertaking in question. The relevant criteria must be suited to the specific characteristics of each employer and the real nature of the activities carried out.

3. For the purposes of the application of Article 12(2) of the basic Regulation, the words ‘who normally pursues an activity as a self-employed person’ shall refer to a person who habitually carries out substantial activities in the territory of the Member State in which he/she is established. In particular, that person must have already pursued his/her activity for some time before the date when he/she wishes to take advantage of the provisions of that Article and, during any period of temporary activity in another Member State, must continue to maintain, in the Member State where he/she is established, the requirements for the pursuit of his/her activity in order to be able to pursue it on his/her return.

4. For the purposes of the application of Article 12(2) of the basic Regulation, the criterion for determining whether the activity that a self-employed person goes to pursue in another Member State is ‘similar’ to the self-employed activity normally pursued, shall be that of the actual nature of the activity, rather than of the designation of employed or self-employed activity that may be given to this activity by the other Member State.

5. For the purposes of the application of Article 13(1) of the basic Regulation, a person who ‘normally pursues an activity as an employed person in two or more Member States’ shall refer, in particular, to a person who:

(a) while maintaining an activity in one Member State, simultaneously exercises a separate activity in one or more other Member States, irrespective of the duration or nature of that separate activity;

(b) continuously pursues activities in alternation, with the exception of marginal activities, in two or more Member States, irrespective of the frequency or regularity of the alternation.

6. For the purposes of the application of Article 13(2) of the basic Regulation a person who ‘normally pursues an activity as a self-employed person in two or more Member States’ shall refer, in particular, to a person who simultaneously or in alternation pursues one or more separate self-employed activities, irrespective of the nature of those activities, in two or more Member States.

7. For the purpose of distinguishing the activities under paragraphs 5 and 6 from the situations described in Article 12(1) and (2) of the basic Regulation, the duration of the activity in one or more other Member States (whether it is permanent or of an ad hoc or temporary nature) shall be decisive. For these purposes, an overall assessment shall be made of all the relevant facts including in particular, in the case of an employed person, the place of work as defined in the employment contract.

8. For the purposes of the application of Article 13(1) and (2) of the basic Regulation, ▐ a ‘substantial part of employed or self-employed activity’ pursued in a Member State shall mean a quantitatively substantial part of all the activities of the employed or self-employed worker ▐ pursued there, without this necessarily being the principal part of these activities.

To determine whether a substantial part of the activities is pursued in a Member State, the following indicative criteria shall be taken into account:

(a) in the case of an employed activity, the working time and/or remuneration; and

(b) in the case of a self-employed activity, the turnover, working time , number of services rendered and/or income.

In the framework of an overall assessment, a total of less than 25 % in respect of the criteria mentioned above shall indicate that a substantial part of the activities is not pursued in the relevant Member State.

9. For the purposes of the application of Article 13(2)(b) of the basic Regulation (, the ‘centre of interest’ of the activities of a self-employed person shall be determined by taking account of all the aspects of that person's occupational activities, notably the place where the person's fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the Member State in which the person concerned is subject to taxation on all his/her income, irrespective of the source, and the intention of the person concerned as revealed by all the circumstances.

10. For the determination of the applicable legislation under paragraphs 8 and 9, the institutions concerned shall take into account the situation projected for the following 12 calendar months.

11. If a person pursues his activity as an employed person in two or more Member States on behalf of an employer established outside the territory of the Union, and if this person resides in a Member State without pursuing substantial activity there, he/she shall be subject to the legislation of the Member State of residence.

▐

Article 15

Procedures for the application of Article 11(3)(b) and (d), Article 11(4) and Article 12 of the basic Regulation (on the provision of information to the institutions concerned)

1. Unless otherwise provided for by Article 16 of the implementing Regulation, where a person pursues his/her activity in a Member State other than the Member State competent under Title II of the basic Regulation, the employer or, in the case of a person who does not pursue an activity as an employed person, the person concerned, shall inform the competent institution of the Member State whose legislation is applicable thereof, whenever possible in advance. That institution shall, without delay, make information concerning the legislation applicable to the person concerned pursuant to Article 11(3)(b) or Article 12 of the basic Regulation available to the institution designated by the competent authority of the Member State in which the activity is pursued.

2. The provisions of paragraph 1 shall apply mutatis mutandis to persons covered by Article 11(3)(d) of the basic Regulation.

3. An employer within the meaning of Article 11(4) of the basic Regulation who has an employee on board a vessel flying the flag of another Member State, shall inform the competent institution of the Member State whose legislation is applicable, whenever possible in advance. That institution shall, without delay, make information concerning the legislation applicable to the person concerned, pursuant to Article 11(4) of the basic Regulation, available to the institution designated by the competent authority of the Member State whose flag, the vessel on which the employee is to perform the activity, is flying.

▐

Article 16

Procedure for the application of Article 13 of the basic Regulation

1. A person who pursues activities in two or more Member States shall inform the institution designated by the competent authority of the Member State of residence. This institution shall forward this information to the designated institution of each Member State in which an activity is pursued.

2. The institution designated by the competent authority of the Member State of residence shall without delay determine ▐ the legislation applicable to the person concerned, having regard to the provisions of Article 13 of the basic Regulation and Article 14 of the implementing Regulation . That determination shall be provisional. The institution shall inform the institutions designated by the competent authorities of each Member State in which an activity is pursued of its provisional determination .

3. The provisional determination of the applicable legislation , as provided for in paragraph 2, shall become definitive within two months of ▐ the designated institution in the Member States where the activity is pursued being informed of the provisional determination , unless the legislation has already been definitively determined on the basis of paragraph 4, or at least one of the institutions concerned informs the institution designated by the competent authority of the Member State of residence by the end of the two-month period that it cannot yet accept the determination or that it takes a different view on this

4. Where uncertainty about the determination of the applicable legislation requires contacts between the institutions or authorities of two or more Member States, at the request of one or more of the institutions designated by the competent authorities of the Member States concerned or of the competent authorities themselves, the legislation applicable to the person concerned shall be determined by common accord, having regard to the provisions of Article 13 of the basic Regulation and the relevant provisions of Article 14 of the implementing Regulation.

Where there is a difference of views between the institutions or competent authorities concerned, those bodies shall seek agreement in accordance with the conditions set out above, and the provisions of Article 6 of the implementing Regulation shall apply.

5. The competent institution of the Member State whose legislation is determined to be applicable either provisionally or definitively shall, without delay, inform the person concerned.

6. If the person concerned fails to provide the information referred to in paragraph 1, the provisions of this Article shall be applied at the initiative of the institution designated by the competent authority of the Member State of residence as soon as it becomes aware of that person's situation, possibly via another institution concerned.

Article 17

Procedure for the application of Article 15 of the basic Regulation

Auxiliary staff shall exercise the right of option foreseen in Article 15 of the basic Regulation at the time of conclusion of the contract of employment. The authority authorised to conclude this contract shall inform the designated institution of the Member State for whose legislation the member of auxiliary staff has opted.

Article 18

Procedure for the application of Article 16(1) of the basic Regulation

A request by the employer or the person concerned for an exemption from Articles 11 to 15 of the basic Regulation, shall be submitted, whenever possible in advance, to the competent authority or the body designated by the authority of the Member State, whose legislation the employer or person concerned requests be applied .

Article 19

Provision of information to ▐ persons concerned and employers

1. The competent institution of the Member State whose legislation becomes applicable by virtue of Title II of the basic Regulation shall inform the person concerned and, where appropriate, his/her employer(s) of the obligations pursuant to this legislation. It shall provide them with the necessary assistance to complete the formalities required by that legislation.

2. The competent institution of the Member State whose legislation is applicable by virtue of a provision of Title II of the basic Regulation shall issue to the person concerned a certificate of applicable legislation ║ and shall indicate where appropriate, until what date and under what conditions. The certificate shall indicate the wages stated by the employer.

Article 20

Cooperation between institutions

1. The relevant institutions ▐ shall communicate to the competent institution of the Member State, whose legislation is applicable to a person by virtue of Title II of the basic Regulation, the necessary information required to establish the date on which this legislation becomes applicable and the contributions which he/she and his/her employer(s) are liable to pay under this legislation.

2. The competent institution of the Member State whose legislation becomes applicable to a person shall inform the institution of the Member State to whose legislation that person was last subject, indicating the date on which the application of this legislation takes effect.

Article 21

Obligations of the employer

1. An employer ║ who has his registered office or place of business outside the competent Member State shall be obliged to fulfil all the obligations laid down by the legislation applicable to the employee, in particular the obligation to pay the contributions provided for by this legislation , as if he had his registered office or place of business in the competent Member State .

2. An employer that does not have a place of business in the Member State whose legislation is applicable and his/her employee may agree that the latter may fulfil the employer's obligations on its behalf as regards the payment of contributions without prejudice to the employer's underlying obligations . The employer shall ║ send notice of such an arrangement to the competent institution of this Member State.

TITLE III

SPECIAL PROVISIONS CONCERNING THE VARIOUS CATEGORIES OF BENEFITS

Chapter I

Sickness, maternity and equivalent paternity benefits

Article 22

General implementing provisions

1. The competent authorities or institutions shall ensure that any necessary information is made available to insured ▐ persons regarding the procedures and conditions for the granting of benefits in kind ▐ where these benefits are received in the territory of a Member State other than that of the competent institution ▐ .

2. Articles 25 and 26 of the implementing regulation shall not affect the application of the national provisions of a Member State that allow for a greater part of the cost of benefits in kind in the situations referred to in paragraph 1 to be borne, than under the terms of the basic Regulation

3. Two or more Member States, or their competent authorities, may agree between themselves on other procedures and arrangements for the application of Articles 25, 26 and 27 of the implementing regulation. However, the agreements concluded to this end may not have unfavourable effects on the conditions and amounts for the chargeability of the benefits in kind of the persons concerned that would stem from the application of this Regulation. These agreements shall be notified to the Administrative Commission.

4. Notwithstanding Article 5(a) of the basic Regulation, a Member State may become responsible for the cost of benefits in accordance with Article 22 of the basic Regulation only if either the insured person has made a claim for a pension under the legislation of that Member State or in accordance with Articles 23 to 30 of the basic Regulation he/she receives a pension under the legislation of that Member State.

Article 23

Regime applicable in the event of the existence of several regimes in the Member State of residence or stay

If the legislation of the place of residence or stay comprises several schemes of sickness, maternity and paternity insurance, the provisions applicable under Articles 17, 19(1), 20, 22, 24, 26 and 27 of the basic Regulation shall be those of the legislation on the general scheme for employed persons.

Article 24

Residence in a Member State other than the competent Member State

1. For the purposes of the application of Article 17 of the basic Regulation, an insured person or members of his/her family shall be obliged to register with the institution of the place of residence, sending a document showing their right to the benefits in kind payable by the competent Member State.

This document shall be issued by the competent institution, where appropriate in the light of the information provided by the employer. If the insured person or the members of his/her family do not send the said document, the institution of the place of residence shall request the necessary information from the competent institution.

2. The document referred to in paragraph 1 shall remain valid until the competent institution informs the institution of the place of residence of its cancellation.

The institution of the place of residence shall inform the competent institution of any registration under paragraph 1 and of any change or cancellation of that registration .

3. This Article shall apply mutatis mutandis to the persons referred to in Articles 22, 24, 25 and 26 of the basic Regulation.

Article 25

Stay in a Member State other than the competent Member State

1. For the purposes of the application of Article 19 of the basic Regulation, the insured person shall present a document issued by his/her competent institution demonstrating his/her entitlement to benefits in kind. to the health care provider in the Member State of stay If the insured person does not have such a document, the institution of the place of stay, upon request or if otherwise necessary, shall contact the competent institution to obtain one .

▐

2. That document shall demonstrate that the insured person is entitled to benefits in kind under the conditions laid down in Article 19 of the basic Regulation on the same terms as those applicable to persons insured under the legislation of the Member State of stay.

▐

3. The benefits in kind referred to in Article 19(1) of the basic Regulation shall refer to the benefits in kind ║provided in the Member State of stay, in accordance with its national legislation, and which become necessary on medical grounds in order to prevent an insured person from being required to return, before the end of the planned duration of stay, to the competent Member State to obtain the necessary treatment ║.

▐

4. If the insured person has actually borne the costs of all or part of the benefits in kind provided within the framework of Article 19 of the basic Regulation and if the legislation applied by the institution of the place of stay enables reimbursement of those costs to an insured person , he/she may send his/her application for reimbursement to the institution of the place of stay. In that case, that institution shall reimburse directly to that person the amount of the costs corresponding to these benefits within the limits and under the conditions of the reimbursement rates in its legislation.

5. If the reimbursement of these costs has not been requested directly from the institution of the place of stay, the costs incurred shall be reimbursed to the person concerned by the competent institution in accordance with the reimbursement rates administered by the institution of the place of stay or, if Article 61 of the implementing Regulation had applied in the case concerned , the amounts which would have been subject to reimbursement to the institution of the place of stay .

The institution of the place of stay shall ║provide the competent institution , upon request, with all necessary information about these rates or amounts . ▐

6. By way of derogation from paragraph 5 , the competent institution may reimburse the costs incurred within the limits of and at the rates laid down in its legislation, provided that the insured person has agreed to this provision being applied to him/her.

7. The reimbursement to the insured person shall not, in any event, exceed the amount of costs actually incurred by him/her.

8. In the case of significant expenditure, the competent institution may pay the insured person an appropriate advance as soon as that person submits his/her application for reimbursement to it.

9. Paragraphs 1-8 shall apply mutatis mutandis to the members of the family of the insured person.

Article 26

Scheduled treatment

1. For the purposes of the application of Article 20(1) of the basic Regulation, the insured person shall present a document issued by the competent institution to the institution of the place of stay. For the purposes of this Article , the competent institution shall mean the institution which bears the cost of the scheduled treatment; in the cases referred to in Article 20(4) and 27(5) of the basic Regulation, in which the benefits in kind provided in the Member State of residence are reimbursed by fixed amounts, the competent institution shall mean the institution of the place of residence .

2. If an insured person does not reside in the competent Member State, he/she shall request authorisation from the institution of the place of residence , which shall forward it to the competent institution without delay .

In that event, the institution of the place of residence shall certify whether the conditions set out in the second sentence of Article 20(2) of the basic Regulation are met in the Member State of residence.

The competent institution may refuse authorisation only if, in accordance with the assessment of the institution of the place of residence, the conditions set out in the second sentence of Article 20(2) of the basic Regulation are not met in the Member State of residence of the insured person, or if the same treatment can be provided in the competent Member State itself, within a time-limit which is medically justifiable, taking into account the current state of health and the prognosis of the person concerned.

The competent institution shall inform the institution of the Member State of residence of its decision.

In the absence of a reply within fifteen ‘calendar days’ of the date on which the request was sent, the authorisation shall be considered to have been granted by the competent institution.

▐

3. If an insured person who does not reside in the competent Member State is in need of an urgent and vitally necessary treatment , the authorisation cannot be refused under the second sentence of Article 20(2) of the basic Regulation. In such circumstances, the authorisation shall be granted by the institution of the place of residence on behalf of the competent institution, which shall be immediately informed by the institution of the place of residence.

The competent institution shall be obliged to accept the findings made and the treatment options given by the doctors approved by the institution of the place of residence that issues the authorisation concerning the need for urgent and vitally necessary treatment that is decided ║

4. The competent institution shall retain the right to have the insured person examined by a doctor of its own choice in the Member State of stay or residence at any time during the procedure granting the authorisation .

5. The institution of the place of stay shall , without prejudice to any decision regarding authorisation, inform the competent institution if it appears medically appropriate to supplement the treatment covered by the existing authorisation .

6. Without prejudice to paragraph 7, Article 25(5) and (6) of the implementing Regulation shall apply mutatis mutandis.

7. If the insured person has actually borne all or part of the costs for the authorised medical treatment, and the costs which the competent institution is obliged to reimburse to the institution of the place of stay or to the insured person pursuant to paragraph 6 (actual cost) are lower than the costs which it would have had to assume for the same treatment in the competent Member State (notional cost), the competent institution shall reimburse, upon request, the cost of treatment incurred by the insured person up to the amount by which the notional cost exceeds the actual cost. The reimbursed sum may not, however, exceed the costs actually incurred by the insured person and may take account of the amount which the insured person would have had to pay if the treatment had been delivered in the competent Member State .

8. ▐ The costs of travel and stay that are inseparable from the treatment of the insured person and, if necessary, the costs of travel and stay for a person who must accompany him/her, shall be assumed by this institution when an authorisation is granted in the case of treatment in another Member State. In the event of the insured person being a person with disabilities, the travel and stay of an accompanying person shall be considered necessary.

9. The provisions of paragraphs 1-8 shall apply mutatis mutandis to the members of the family of the insured persons.

Article 27

Cash benefits relating to incapacity for work in the event of a stay or residence in a Member State other than the competent Member State

1. If the legislation of the competent Member State requires that the insured person present a certificate in order to be entitled to cash benefits relating to incapacity for work pursuant to Article 21(1) of the basic Regulation, the insured person shall ask the doctor of the Member State of residence who established his/her state of health to ▐ certify his/her incapacity for work and its probable duration .

2. The insured person shall send the certificate to the competent institution within the time-limit laid down in the legislation of the competent Member State .

3. Where doctors providing treatment in the Member State of residence do not issue certificates of incapacity for work, and where such certificates are required under the legislation of the competent Member State, the person concerned shall apply directly to the institution of the place of residence. That institution shall immediately arrange for a medical assessment of the person's incapacity for work and for the certificate referred to in paragraph 1 to be drawn up. The certificate shall be forwarded to the competent institution forthwith.

4. The forwarding of the document referred to paragraphs 1, 2 and 3 shall not exempt the insured person from fulfilling the obligations provided for by the applicable legislation, in particular with regard to his/her employer. Where appropriate the employer and/or the competent institution may call upon the employee to participate in activities designed to promote and assist his/her return to employment.

▐

5. At the request of the competent institution or in the cases referred to in paragraph 3, the institution of the place of residence shall have the medical condition of the insured person checked, where necessary, as if that person were insured by it. The information in the report of the examining doctor concerning, in particular, the probable duration of the incapacity for work, shall be forwarded by the institution of the place of residence to the competent institution within three working days of the date of the examination.

▐

6. The competent institution shall retain the right to have the insured person examined by a doctor of its choice.

7. Without prejudice to the second sentence of Article 21(1) of the basic Regulation, the competent institution shall pay the cash benefits directly to the person concerned and shall , where necessary, inform the institution of the place of residence thereof.

8. For the purposes of the application of Article 21(1) of the basic Regulation, the particulars of the certificate of incapacity for work of an insured person drawn up in another Member State on the basis of the medical findings of the examining doctor must be accepted by the competent institution unless there has been any abusive conduct.

9. If the competent institution decides to refuse the cash benefits, it shall notify the insured person of its decision and simultaneously notify the institution of the place of residence thereof.

10. The provisions of paragraphs 1-9 shall apply mutatis mutandis when the insured person stays in a Member State other than the competent Member State.

Article 28

Long-term care benefits in cash in the event of a stay or residence in a Member State other than the competent Member State

1. In order to be entitled to cash benefits relating to long-term care pursuant to Article 21(1) of the basic Regulation, the insured person shall apply to the competent institution. The competent institution shall, where necessary, inform the institution of the place of residence thereof.

2. At the request of the competent institution, the institution of the place of residence shall examine the condition of the insured person with respect to his/her need for long-term care. The competent institution shall provide the institution of the place of residence with all the information necessary for such an examination.

3. In order to determine the degree of need for long-term care, the competent institution shall have the right to have the insured person examined by a doctor or any other expert of its choice.

4. Article 27(7) of the implementing Regulation shall apply mutatis mutandis.

5. Paragraphs 1-4 shall apply mutatis mutandis when the insured person stays in a Member State other than the competent Member State.

6. Paragraphs 1-5 shall apply mutatis mutandis to the members of the family of the insured person.

Article 29

Application of Article 28 of the basic Regulation

If the Member State where the former frontier worker last pursued his/her activity is no longer the competent Member State, and the former frontier worker or a member of his/her family travels there with the purpose of receiving benefits in kind by virtue of Article 28 of the basic Regulation, he/she shall submit to the institution of the place of stay a document issued by the competent institution.

Article 30

Contributions by pensioners

▐

If a person receives a pension from more than one Member State, the amount of contributions deducted from all the pensions paid shall under no circumstances be greater than the amount deducted from a person with the same amount of pension obtained from the competent Member State.

Article 31

Application of Article 34 of the basic Regulation

1. The competent institution shall ▐ inform the person concerned of the provision contained in Article 34 of the basic Regulation regarding the prevention of overlapping of benefits. The application of such rules shall ensure that the person not residing in ▐ the competent Member State is entitled to benefits of at least the same total amount or value as those to which he/she would be entitled if he/she resided in that Member State.

2. The competent institution shall also inform the institution of the place of residence or stay of the payment of long-term care cash benefits where the legislation applied by the latter institution provides for long-term care benefits in kind included in the list referred to in Article 34(2) of the basic Regulation.

3. Having received the information provided for in paragraph 2, the institution of the place of residence or stay shall, without delay, inform the competent institution of any long-term care benefit in kind intended for the same purpose granted under its legislation to the person concerned and of the rate of reimbursement applicable thereto.

4. The Administrative Commission shall lay down implementing measures for this Article where necessary.

Article 32

Special implementing measures

1. For the Member States referred to in Annex II, the provisions of Title III, Chapter I, of the basic Regulation ▐ relating to benefits in kind shall apply to persons entitled to benefits in kind solely on the basis of a special scheme for civil servants only to the extent specified therein. The institution of another Member State shall not, on those grounds alone, become responsible for bearing the costs of benefits in kind or in cash provided to those persons or to members of their family.

2. Notwithstanding the provisions of paragraph 1, Article 23 of the basic Regulation shall apply to persons who are entitled to both a pension under a civil servants’ scheme in one of the Member States referred to in Annex 2 and a pension under the legislation of another Member State.

3. Practical implementing measures for paragraphs 1 and 2 shall be taken by the Administrative Commission.

Chapter II

Benefits in respect of accidents at work and occupational diseases

Article 33

Right to benefits in kind and in cash in the event of residence or stay in a Member State other than the competent Member State

For the purposes of applying Article 36(1) of the basic Regulation, the procedures laid down in Articles 24 to 27 of the implementing Regulation shall apply mutatis mutandis.

▐

Article 34

Cooperation between institutions in the event of an accident at work or occupational disease which occurs in a Member State other than the competent Member State

1. If the accident at work or occupational disease is diagnosed for the first time in a Member State other than the competent Member State, the declaration of the occupational accident or disease shall be carried out in accordance with the legislation of the competent State, without prejudice, where appropriate, to the legal provisions in force in the Member State in which the occupational accident occurred or in which the first medical diagnosis of the occupational disease was made, which remain applicable in such cases. This declaration shall be addressed to the competent institution and a copy shall be sent to the institution in the place of residence or stay.

2. The institution of the Member State in the territory of which the occupational accident occurred or in which the occupational disease was first diagnosed, shall notify the competent institution of medical certificates drawn up in the territory of that State and, at the request of that institution, shall provide any appropriate information.

3. Where, as a result of a commuting accident which occurs in the territory of a Member State other than the competent Member State, an inquiry is necessary in the territory of the first Member State, an investigator may be appointed for this purpose by the competent institution, which shall inform the authorities of that Member State. The authorities shall assist the investigator, in particular by appointing a person responsible for helping to consult the reports and any other documents relating to the accident.

4. Following treatment, a detailed report accompanied by medical certificates relating to the permanent consequences of the accident or illness, in particular the victim's present state and the recovery or stabilisation of injuries, shall be sent to the competent institution. The relevant fees shall be paid by the institution in the place of residence or by the institution in the place of stay, where appropriate, at the rate applied by that institution to the charge of the competent institution.

5. At the request of the institution in the place of residence or the institution in the place of stay, where appropriate, the competent institution shall notify it of the decision setting the date for the recovery or stabilisation of injuries and, where appropriate, the decision concerning the granting of a pension.V

Article 35

Contestation of the occupational nature of the accident or disease

1. Where the competent institution contests application of the legislation relating to accidents at work or occupational diseases under Article 36(2) of the basic Regulation, it shall immediately inform the institution in the place of residence or stay which provided the benefits in kind, which will then be considered as sickness insurance benefits.

2. When a final decision has been taken on this subject, the competent institution shall immediately inform the institution in the place of residence or stay which provided the benefits in kind. The latter institution shall continue to pay benefits in kind as sickness insurance benefits if the employed or self-employed person is entitled to them and an occupational accident or disease is not involved. If that is not the case, benefits in kind paid to the beneficiary as sickness insurance shall be considered as occupational accident or disease benefits from the date on which the occupational accident or disease was first diagnosed.

Article 36

Procedure in the event of exposure to the risk of an occupational disease in several Member States

1. In the case referred to in Article 38 of the basic Regulation, the declaration of the occupational disease shall be sent either to the competent institution for occupational diseases of the last Member State under the legislation of which the victim pursued an activity likely to cause the said disease, or to the institution in the place of residence, which shall forward the declaration to the ║competent institution.

If the latter institution establishes that an activity likely to cause the occupational disease in question was last pursued under the legislation of another Member State, it shall send the declaration and the accompanying certificates to the equivalent institution in that Member State.

2. Where the institution of the last Member State under the legislation of which the victim pursued an activity likely to cause the occupational disease in question establishes that the victim or his/her survivors do not meet the requirements of that legislation, that institution shall forward immediately to the institution of the previous Member State under the legislation of which the victim pursued an activity likely to cause the occupational disease in question the declaration and all accompanying certificates, including the findings and reports of medical examinations performed by the first institution, as well as a copy of the decision referred to in the second paragraph.

It shall also inform the insured person of its decision, indicating in particular the reasons for refusing benefits, the remedies and periods allowed for appeals, as well as the date on which the dossier was sent to the institution of the Member State under the legislation of which the insured person previously pursued an activity likely to cause the occupational disease in question.

3. It is advisable, where appropriate, to go back under the same procedure ║as far as the equivalent institution in the Member State under whose legislation the victim first pursued an activity likely to cause the occupational disease in question.

Article 37

Exchange of information between institutions and advance payments in the event of an appeal against rejection

1. In the event of an appeal against a decision to refuse benefits taken by the institution of one of the Member States under the legislation of which the victim pursued an activity likely to cause the occupational disease in question, that institution shall inform the institution to which the declaration was sent, in accordance with the procedure provided for in Article 36(2) of the implementing regulation, and shall subsequently inform it of the final decision.

2. Where a person is entitled to benefits under the legislation applied by the institution to which the declaration was sent, that institution shall make the advance payments, the amount of which shall be determined, where appropriate, after consulting the institution which made the decision against which the appeal was lodged. The latter institution shall reimburse the advance payments made if, as a result of the appeal, it is obliged to provide these benefits. That amount will then be deducted from the benefits due to the person concerned, in accordance with the procedure provided for in Article 71 of the implementing regulation.

Article 38

Aggravation of an occupational disease

In the cases covered by Article 39 of the basic Regulation, the claimant must give the institution in the Member State from which he/she is claiming entitlement to benefits all the details concerning benefits previously granted for the occupational disease in question. That institution may contact any other previously competent institution in order to obtain the information it considers necessary.

Article 39

Assessment of the degree of incapacity in the event of occupational accidents or diseases which occurred previously or subsequently.

For the purposes of applying Article 40(3) of the basic Regulation, where a previous or subsequent incapacity for work was caused by an accident which occurred when the person concerned was subject to the legislation of a Member State which makes no distinction according to the origin of the incapacity to work, the competent institution in the case of the previous or subsequent incapacity for work or the body designated by the competent authority of the Member State in question shall be obliged, when requested to do so by the competent institution of another Member State, to provide information concerning the degree of the previous or subsequent incapacity for work, and, where possible, information making it possible to determine whether the incapacity is the result of an accident at work within the meaning of the legislation applied by the institution in the other Member State.

In such cases, the competent institution shall take into account the degree of incapacity caused by these previous or subsequent cases when determining the right to benefits and the amount, in accordance with the applicable legislation.

Article 40

Submission and investigation of claims for pensions or supplementary allowances

1. In order to receive a pension or supplementary allowance under the legislation of a Member State, the employed or self-employed person or his/her survivors residing in the territory of another Member State shall submit a claim either to the competent institution or to the institution in the place of residence, which shall send it to the competent institution. The claim shall be accompanied by the necessary supporting documents and be drawn up in accordance with the legislation applied by the competent institution.

2. The competent institution shall notify the claimant of its decision directly or through the liaison body of the competent State. It shall send a copy of this decision to the liaison body of the Member State in which the claimant resides.

Article 41

Special implementing measures

The provisions of Title III, Chapter 2 of the basic Regulation covering benefits in kind shall not apply to persons entitled to benefits in kind solely on the basis of a special scheme for civil servants in one of the Member States referred to in Annex II to the implementing Regulation.

Chapter III

Death grants

Article 42

Claim for death grants

For the purposes of applying Articles 42 and 43 of the basic Regulation, the claim for death grants shall be sent to the institution in the claimant's place of residence.

Chapter IV

Invalidity benefits and old-age and survivors’ pensions

Article 43

Calculation of benefit

1. For the purposes of calculating the theoretical amount and the actual amount of the benefit in accordance with Article 52(1)(b) of the basic Regulation, ▐ the rules provided for in Article 12(3), (4) , (5) and (6) of the implementing Regulation shall apply.

2. Where periods of voluntary or optional continued insurance have not been taken into account under Article 12(3) of the implementing Regulation, the institution of the Member State under whose legislation these periods were completed shall calculate the amount corresponding to these periods under the legislation it applies. The actual amount of the benefit, calculated in accordance with Article 52(1)(b) of the basic Regulation, shall be increased by the amount corresponding to periods of voluntary or optional continued insurance.

3. The institution of each Member State shall calculate, under the legislation it applies, the amount due corresponding to periods of voluntary or optional continued insurance which, under Article 53(3)(c) of the basic Regulation, shall not be subject to another Member State's rules relating to withdrawal, reduction or suspension.

Where the legislation applied by the competent institution does not allow it to determine this amount directly on the grounds that that legislation allocates different values to insurance periods, a notional amount may be established. The Administrative Commission shall lay down the modalities for the determination of that notional amount.

▐

Article 44

Taking into account of child-raising periods

1. For the purposes of this Article, ‘child-raising period’ shall mean any period which is credited under the pension legislation of a Member State or which provides a supplement to a pension explicitly for the reason that a person has raised a child, irrespective of the method used to calculate those periods and whether they accrue during the time of child-raising or are acknowledged retroactively.

2. Where, under the legislation of the Member State which is competent under Title II of the basic Regulation, no child-raising period is taken into account, the institution of the Member State whose legislation was applicable to the person concerned, in accordance with Title II of the basic Regulation, on the grounds that he or she was pursuing an activity as an employed or self-employed person at the date when, under that legislation, the child-raising period started to be taken into account for the child concerned, shall remain responsible for taking into account that period as a child-raising period under its own legislation, as if such child-raising had taken place in its own territory.

3. Paragraph 2 shall not apply if the person concerned is/or becomes subject to the legislation of another Member State due to the pursuit of an employed or self-employed activity there.

Article 45

Claim for benefits

1. In order to receive benefits under type A legislation under Article 44(2) of the basic Regulation, the claimant shall submit a claim to the institution of the Member State ║ whose legislation was applicable at the time when the incapacity for work occurred followed by invalidity or the aggravation of this invalidity , or to the institution of the place of residence, which shall forward the claim to the former institution .

2. If sickness benefits in cash have been awarded, the expiry date of the period for awarding these benefits shall, where appropriate, be considered as the date of submission of the pension claim.

3. In the case referred to in Article 47(1)(b) of the basic Regulation, the institution with which the person concerned was last insured shall inform the institution which initially paid the benefits of the amount and the date of commencement of the benefits under the applicable legislation. From that date benefits due before aggravation of the invalidity shall be withdrawn or reduced to the supplement referred to in Article 47(2) of the basic Regulation.

4. In situations other than those referred to in paragraph 1 , the claimant shall submit a claim to the institution of his/her place of residence or to the institution of the last Member State whose legislation was applicable. If the person concerned was not, at any time, subject to the legislation applied by the institution of the place of residence, that institution shall forward the claim to the institution of the last Member State whose legislation was applicable .

5. The date of submission of the claim shall apply in all the institutions concerned.

6. By way of derogation from paragraph 5, if the claimant does not specify all the periods of insurance or residence which were subject to the legislation of other Member States, despite being specifically asked to do so, the date on which the claimant completes his/her initial claim or submits a new claim for the missing periods shall be considered as the date of submission of the claim to the institution applying the legislation in question, subject to more favourable provisions of that legislation.

▐

Article 46

Certificates and information to be submitted with the claim by the claimant

1. The claim shall be submitted by the claimant in accordance with the provisions of the legislation applied by the institution referred to in Article 45(1) or (4) of the implementing Regulation and be accompanied by the supporting documents required by that legislation. In particular, the claimant shall supply all available relevant information and supporting documents relating to periods of insurance (institutions, identification numbers), employment ( employers ) or self-employment (nature and place of activity) and residence (addresses) which may have been completed under other legislation, as well as the length of those periods .

2. Where, in accordance with Article 50(1) of the basic Regulation, the claimant requests deferment of the award of old-age benefits ▐ under the legislation of one or more Member States, he/she shall state that in his/her claim and specify under which legislation the deferment ▐ is requested. In order to enable the claimant to exercise that right, the institutions concerned shall, upon the request of the claimant, notify him/her of all the information available to them so that he/she can assess the consequences of concurrent or successive awards of benefits which he/she might claim.

3. Should the claimant withdraw a claim for benefits provided for under the legislation of a particular Member State, that withdrawal shall not be considered as a concurrent withdrawal of claims for benefits under the legislation of other Member States.

Article 47

Investigation of claims by the institutions

1. The institution to which the claim for benefits shall be submitted or forwarded in accordance with the provisions of Article 45(1) or (4) of the implementing Regulation shall be referred to hereinafter as the ‘ contact institution’. The institution of the place of residence shall not be referred to as the contact institution if the person concerned has not, at any time, been subject to the legislation which that institution applies .

In addition to investigating the claim for benefits under the legislation which it applies, the contact institution shall promote the exchange of data, communication of decisions and operations necessary for the investigation of the claim by the institutions concerned, supply the claimant, upon request, with any information relevant to the Community aspects of the investigation and keep him/her informed of its progress.

2. In the case referred to in Article 44(3) of the basic Regulation, the investigating institution shall send all the documents of the person concerned to the institution with which he/she was previously insured, which shall in turn examine the case.

3. Articles 48 to 52 shall not be applicable to the investigation of claims referred to in Article 44 of the basic Regulation.

4. In situations other than those referred to in paragraph 2 , the contact institution shall , without delay, send claims for benefits and all the documents which it has available and, where appropriate, the relevant documents supplied by the claimant to all the institutions in question so that they can all start the investigation of the claim concurrently. The contact institution shall notify the other institutions of periods of insurance or residence subject to its legislation. It shall also indicate which documents will be submitted at a later date and supplement the claim as soon as possible.

5. Each of the ▐ institutions in question shall notify the contact institution and the other institutions in question, as soon as possible, of the periods of insurance or residence subject to their legislation. ▐

6. Each of the institutions in question shall calculate the amount of benefits in accordance with Article 52 of the basic Regulation ▐ and shall notify the contact institution and the other institutions concerned of its decision, of the amount of benefits due and of any information required for the purposes of Articles 53 to 55 of the basic Regulation .

7. Should an institution establish, on the basis of the information referred to in paragraphs 4 and 5 of this Article, that Article 46(2) or Article 57(2) or (3) of the basic Regulation is applicable , it shall inform the contact institution and the other institutions concerned .

▐

Article 48

Notification of decisions to the claimant

1. Each institution shall notify the claimant of the decision it has taken in accordance with the applicable legislation. Each decision shall specify the remedies and periods allowed for appeals. Once the contact institution has been notified of all decisions taken by each institution , it shall send the claimant and the other institutions concerned a summary of those decisions. A model summary shall be drawn up by the Administrative Commission. The summary shall be sent to the claimant in the language of the institution or, at the request of the claimant, in any language of his/her choice recognised as an official language of the Community institutions in accordance with Article 290 of the Treaty .

2. Where it appears to the claimant, following receipt of the summary, that his/her rights may have been adversely affected by the interaction of decisions taken by two or more institutions, the claimant shall have the right to a review of the decisions by the institutions concerned within the time limits laid down in the respective national legislation. The time limits shall start to run on the date of receipt of the summary. The claimant shall be notified of the result of the review in writing .

Article 49

Determination of the degree of invalidity

1. Where the provisions of Article 46(3) of the basic Regulation are applicable, the investigating institution alone shall be authorised to take the decision concerning the degree of invalidity of the claimant. It shall take this decision as soon as it is in a position to determine whether the conditions for eligibility laid down in the applicable legislation are met, taking into account, where appropriate, the provisions of Articles 6 and 51 of the basic Regulation. It shall immediately notify the other institutions in question of this decision.

Where the eligibility criteria, other than those relating to the degree of invalidity, laid down in the applicable legislation are not met, taking into account the provisions of Articles 6 and 51 of the basic Regulation, the investigating institution shall immediately inform the competent institution of the last Member State to whose legislation the claimant was subject. The latter institution shall be authorised to take the decision concerning the degree of invalidity of the claimant if the conditions for eligibility laid down in the applicable legislation are met. It shall immediately notify the other institutions involved of this decision.

2. When determining eligibility it is advisable, where appropriate, ║, to go back under the same procedure as far as the competent institution for invalidity in the Member State to whose legislation the claimant was first subject.

3. Where the provisions of Article 46(3) of the basic Regulation are not applicable, each institution , shall , in accordance with its legislation have the possibility of having the claimant examined by a medical doctor or other expert of its choice to determine the degree of invalidity. However, the institution of a Member State shall take into consideration documents, medical reports and administrative information collected by the institution of any other Member State as if they had been drawn up in its own Member State.

▐

Article 50

Provisional instalments and advance payment of benefits

1. Notwithstanding Article 7 of this Regulation, any institution which establishes while investigating a claim for benefits that the claimant is entitled to an independent benefit under the applicable legislation, in accordance with Article 52(1)(a) of the basic Regulation, shall pay this benefit immediately. This payment shall be considered provisional if the amount may be affected by the result of the claim investigation procedure.

2. Where no provisional benefit can be paid to the claimant under paragraph 1 but it is evident from the information received that the claimant is eligible under Article 52(1)(b) of the basic Regulation, the investigating institution shall make a recoverable advance payment, the amount of which shall be as close as possible to the amount which will probably be paid under Article 52(1)(b) of the basic Regulation.

3. Each institution which is obliged to pay the provisional benefits or advance payment under paragraphs 1 or 2 shall inform the claimant without delay , specifically drawing his/her attention to the provisional nature of the measure and any rights of appeal in accordance with its legislation .

Article 51

New calculation of benefits

1. Where there is a new calculation of benefits in accordance with Articles 48(3) and (4), 50(4) and 59(1) of the basic Regulation, Article 50 of the implementing Regulation shall be applicable mutatis mutandis.

2. Where there is a new calculation, withdrawal or suspension of the benefit, the institution which took the decision shall inform the person concerned immediately in accordance with the procedure provided for in Article 3(4) to (7) of the implementing Regulation and shall inform each of the institutions in respect of which the person concerned has an entitlement.

Article 52

Measures intended to accelerate the pension calculation process

1. In order to facilitate and accelerate the investigation of claims and the payment of benefits, the institutions to whose legislation a person has been subject shall:

(a) exchange with or make available to institutions of other Member States the elements for identifying persons who change from one applicable national legislation to another, and together ensure that those identification elements are retained and correspond, or, failing that, provide those persons with the means to access their identification elements directly;

(b) sufficiently prior to the minimum age for commencing pension rights or an age to be determined, by the institutions to whose legislation a person has been subject, exchange with or make available to the person concerned and to institutions of other Member States information (periods completed or other important elements) on the pension entitlements of persons who have changed from one applicable legislation to another or, failing that, inform those persons of, or provide them with, the means of familiarising themselves with their prospective benefit entitlement.

2. For the purposes of applying paragraph 1, the Administrative Commission shall determine the elements of information to be exchanged or made available and shall establish the appropriate procedures and mechanisms, taking account of the characteristics, administrative and technical organisation, and the technological means at the disposal of national pension schemes. The Administrative Commission shall ensure the implementation of those pension schemes by organising a follow-up to the measures taken and their application .

3. For the purposes of applying paragraph 1, the institution in the first Member State where a person is allocated a Personal Identification Number (PIN) for the purposes of social security administration should be provided with the information mentioned above.

▐

Article 53

Coordination measures in a Member State

1. Without prejudice to Article 51 of the basic Regulation, where national legislation includes rules for determining the institution responsible or the scheme applicable or for designating periods of insurance to a specific scheme , those rules shall be applied, taking into account only periods of insurance completed under the legislation of the Member State concerned.

2. Where national legislation includes rules for the coordination of special schemes for civil servants and the general scheme for employed persons, those rules shall not be affected by the provisions of the basic Regulation and of the implementing Regulation.

Chapter V

Unemployment benefits

Article 54

Aggregation of periods and calculation of benefits

1. Article 12(1) of the implementing Regulation shall apply mutatis mutandis to Article 61 of the basic Regulation. Without prejudice to the underlying obligations of the institutions involved, the person concerned may submit to the competent institution a document issued by the institution of the Member State to whose legislation he/she was subject in respect of his/her last activity as an employed or self-employed person specifying the periods completed under that legislation.

2. For the purposes of applying Article 62(3) of the basic Regulation, the competent institution of the Member State to whose legislation the person concerned was subject in respect of his/her last activity as an employed or self-employed person shall, at the request of the institution in the place of residence, provide it with all the information necessary to calculate unemployment benefits, in particular the salary or professional income received.

▐

3. For the purposes of applying Article 62 of the basic Regulation and notwithstanding Article 63 of that Regulation, the competent institution of a Member State whose legislation provides that the calculation of benefits varies with the number of members of the family shall also take into account the members of the family of the person concerned residing in another Member State as if they resided in the competent Member State. This provision shall not apply where, in the Member State of residence of members of the family, another person is entitled to unemployment benefits calculated on the basis of the number of members of the family.

Article 55

Conditions and restrictions on the retention of the entitlement to benefits for unemployed persons going to another Member State

1. In order to be covered by the provisions of Article 64 of the basic Regulation, the unemployed person going to another Member State shall inform the competent institution prior to his/her departure and request a document certifying that he/she retains entitlement to benefits under the conditions laid down in Article 64(1)(b) of the basic Regulation.

That institution shall inform the person concerned of his/her obligations and shall provide the abovementioned document which includes the following information:

(a) the date on which the unemployed person ceased to be available to the employment services of the competent State;

(b) the period granted in accordance with Article 64(1)(b) of the basic Regulation in order to register as a person seeking work in the Member State to which the unemployed person has gone;

(c) the maximum period during which the entitlement to benefits may be retained in accordance with Article 64(1)(c) of the basic Regulation;

(d) circumstances likely to affect the entitlement to benefits.

2. The unemployed person shall register as a person seeking work with the employment services of the Member State to which he/she goes in accordance with the provisions of Article 64(1)(b) of the basic Regulation and shall send the document referred to in paragraph (1) to the institution of that Member State. If he/she fails to do this, the institution in the place to which the unemployed person has gone shall contact the competent institution in order to obtain the necessary information.

3. The employment services in the Member State to which the unemployed person has gone to seek employment shall inform the unemployed person of his/her obligations.

4. The institution in the place to which the unemployed person has gone shall immediately send a document to the competent institution containing the date on which the unemployed person registered with the employment services and his/her new address.

If, throughout the period during which the unemployed person retains entitlement to benefits , any circumstance likely to affect the entitlement to benefits arises, the institution in the place to which the unemployed person has gone shall send immediately to the competent institution and to the person concerned a document containing the relevant information.

At the request of the competent institution, the institution in the place to which the unemployed person has gone shall provide relevant information on a monthly basis concerning the follow-up of the unemployed person's situation , in particular whether the latter is still registered with the employment services and is complying with organised checking procedures.

5. The institution in the place to which the unemployed person has gone shall carry out or arrange for checks to be carried out as if the person concerned were an unemployed person obtaining benefits under its own legislation. It shall immediately inform the competent institution of the occurrence of any circumstance referred to in paragraph 1(d).

6. The competent authorities or competent institutions of two or more Member States may agree amongst themselves a set of measures to promote the job-seeking activities of unemployed persons who go to one of those Member States under Article 64 of the basic Regulation.

Article 56

Unemployed persons who resided in a Member State other than the competent Member State

1. Where the unemployed person decides, in accordance with Article 65(2) of the basic Regulation, to register as a person seeking work in the Member State in which he/she resides as well as in the Member State in which he/she pursued his/her last activity as an employed or self-employed person, he/she shall inform as a priority the institution and employment services of his/her place of residence.

At the request of the employment services of the Member State in which he/she pursued his/her last activity as an employed or self-employed person, the employment services in the place of residence shall send the relevant information concerning the unemployed person's registration and search for employment.

2. Where the legislation applicable in the Member States concerned requires the fulfilment of certain obligations and/or job-seeking activities by the unemployed person , the obligations and/or job-seeking activities by the unemployed person in the Member State of residence shall have priority .

The non-fulfilment by the unemployed person of all the obligations and/or job-seeking activities in the Member State in which he/she pursued his/her last activity shall not affect the benefits awarded in the Member State of residence.

3. For the purposes of applying Article 65(5)(b) of the basic Regulation, the institution of the Member State to whose legislation the worker was last subject shall inform the institution in the place of residence, when requested to do so by the latter, whether the worker is entitled to benefits under Article 64 of the basic Regulation ║.

Chapter VI

Family benefits

Article 57

Priority rules in the event of overlapping

For the purposes of applying Article 68(1)(b)(i) and (ii) of the basic Regulation, where the order of priority cannot be established on the basis of the children's place of residence, each Member State concerned shall calculate the amount of benefits including the children not resident within its own territory. When applying Article 68(1)(b)(i), the competent institution of the Member State whose legislation provides for the highest level of benefits shall pay the full amount of such benefits and be reimbursed half this sum by the competent institution of the other Member State up to the limit of the amount provided for in the legislation of the latter Member State.

Article 58

Rules applicable where the applicable legislation and/or the competence to grant family benefits changes

1. Where the applicable legislation and/or the competen