Proposal for a COUNCIL DECISION on on the position of the Community within the Association Council concerning implementation of Article 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part

(presented by the Commission)

EXPLANATORY MEMORANDUM

The aim of this proposal is to implement the provisions governing social security coordination contained in the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and Tunisia of the other, signed in Brussels on 17 July 1995 [1]. In accordance with Article 67 of that agreement, the said provisions are to be adopted by the Association Council.

[1] OJ L 97, 30 March 1998.

1. LEGAL BASIS

The draft decision of the Association Council is based on Articles 65, 66, 67 and 68 of the EC-Tunisia Association Agreement.

2. GENERAL CONSIDERATIONS

2.1. Content of the Agreement

The EU-Tunisia association agreement provides for a coordination system to be set up on the following bases:

1. Concerning Tunisian workers legally resident and legally employed in a Member State, as well as the members of their family legally resident in a Member State:

(a) the absence of any discrimination based on nationality;

(b) aggregation of periods of insurance, employment or residence completed under the legislation of one or more Member States for acquisition of entitlement, in another Member State, to pensions in respect of old age, invalidity and survivors, to family benefits and to sickness and maternity benefits;

(c) payment of family allowances to persons employed in a Member State and whose family members are resident within the Community;

(d) exportation to Tunisia of pensions in respect of old age, survivors, accidents at work/occupational diseases or invalidity arising therefrom;

2. Concerning workers who are nationals of a Member State resident and working legally in Tunisia and the members of their family legally resident there:

affording, by analogy, the advantages referred to in 1(a), 1(c) and 1(d) above.

2.2. Purpose of the agreement

The purpose of the EU-Tunisia Association Agreement is to set up a coordination system to provide Tunisian workers with protection along the lines of that which Community regulations provide for European citizens.

However, the provisions of the Agreement do not form part of the arrangements relating to free movement for workers and do not set out to treat Tunisian workers in as favourable a manner as that guaranteed by the system of coordination of social security schemes set up by Regulation 1408/71.

3. COMMENTARY ON DRAFT DECISION

3.1. Presentation of the draft

The decision must cover the provisions relating to the obligations of each Contracting Party and the provisions relating only to Member States' obligations in respect of Tunisian workers.

The draft decision breaks down as follows:

-Parts I, III, and IV relate to the Member States and Tunisia;

-Part II is applicable by Member States alone.

-annexes containing further details on applying the decision to the legislations of the Member States and Tunisia.

3.2. Content of draft decision

COMMENTARY ON ARTICLES.

PART I - GENERAL PROVISIONS

Article 1

The terms defined in this Article correspond more or less to the definitions in Regulation 1408/71. However, in keeping with the provisions of the agreement, the term 'worker' refers to employed persons only. Finally, some definitions in Regulation 1408/71 refer to the Member States and so it has been necessary to add a reference to Tunisia as well.

Article 2

This Article defines which persons are covered by the Decision, i.e. Tunisian workers and nationals of a Member State, as well as the members of their family and their survivors, who are legally employed and reside legally in a Member State or in Tunisia.

Article 3

This provision contains the standard formulation concerning the principle of equality of treatment which corresponds, by analogy, to Article 3 of Regulation 1408/71.

Article 4

The 'matters covered' takes into account the concept of social security as specified by the Agreement and corresponds to Article 4 of Regulation 1408/71.

Article 5

This provision corresponds to Article 5 of Regulation 1408/71 and allows each Contracting Party to become acquainted with the legislations and schemes to which the Decision applies.

Article 6

This Article, based on Article 3(3) of Regulation 1408/71, extends application of certain social security conventions - mentioned in Annex III - concluded between Member States to the Tunisian workers covered by the Decision.

Article 7

Paragraph 1 deals with the waiving of the residence rules governing the benefits listed by the Agreement. Firstly, it will be possible to export to any Member State the benefits which a Tunisian worker acquires under the legislation of one or more Member States. Secondly, benefits acquired under Tunisian legislation must be exportable to any Member State and, conversely, benefits acquired under the legislation of one or more Member States will be exportable to Tunisia.

Article 8

This provision concerns the payment of special non-contributory benefits in the territory of the Member State where the person concerned is resident, without the possibility of exporting them, but also without aggregation of periods, in accordance with the provisions of the Agreement.

Article 9

This provision concerns revalorisation of benefits and corresponds to Article 11 of Regulation 1408/71. Where the legislation of a Member State contains such rules, they are applicable to the benefits acquired in application of the Decision.

Article 10

This provision refers to the arrangements under Article 12 of Regulation 1408/71 regarding application of the rules to prevent overlapping.

PART II - PROVISIONS CONCERNING APPLICATION OF MEMBER STATES' SOCIAL SECURITY SCHEMES TO TUNISIAN WORKERS AND THE MEMBERS OF THEIR FAMILY

TITLE I

DETERMINATION OF THE APPLICABLE LEGISLATION

Articles 11 to 18

These provisions more or less replicate the rules for determining the legislation applicable contained in Regulation 1408/71 and relating to employed persons. Their aim is to avoid situations in which persons covered by the Decision are simultaneously subject to two social security legislations (double contribution) or, on the contrary, to none (lack of protection). These rules are based on the principle whereby only one legislation is applicable, generally that of the worker's State of employment, but also lay down special rules, especially as regards posted workers.

TITLE II

SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OF BENEFITS

Articles 19 to 38

These provisions more or less correspond to the Chapter on "Sickness and maternity" in Regulation 1408/71.

Articles 39 to 45

These provisions more or less correspond to the Chapter on "Invalidity" in Regulation 1408/71.

Articles 46 to 56

These provisions more or less correspond to the Chapter on "Old age and death (pensions)" in Regulation 1408/71.

Articles 57 to 68

These provisions more or less correspond to the Chapter on "Accidents at work and occupational diseases" in Regulation 1408/71.

Articles 69 to 71

These provisions more or less correspond to the Chapter on "Death grants" in Regulation 1408/71.

Articles 72 to 76

These provisions correspond to the Chapter on "Family benefits" in Regulation 1408/71.

Articles 77 to 79

These provisions correspond to the Chapter on "Benefits for dependent children of pensioners and for orphans" in Regulation 1408/71.

PART III - MISCELLANEOUS PROVISIONS

These provisions, which replicate some articles of Regulation 1408/71, deal mainly with the arrangements for cooperation between the authorities of the Member States and of Tunisia.

PART IV - TRANSITIONAL AND FINAL PROVISIONS

This part, which relates to both Tunisia and the Member States, concerns the subsequent arrangements for applying the Decision.

The Council is invited to adopt a decision on the Community's position as reflected in the appended Draft Decision of the EC-Tunisia Association Council.

Proposal for a COUNCIL DECISION on on the position of the Community within the Association Council concerning implementation of Article 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular the first sentence of the second paragraph of article 300 there of,

Having regard to the proposal of the Commission [2],

[2] OJ C..., ..., p. ...

Whereas:

(1) The Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and Tunisia, of the other part, was concluded by Decision of the Council and the Commission of 26 January 1998.

(2) Article 65 of the Agreement makes provision for coordination of the social security schemes of the European Union Member States and of Tunisia,

HAS DECIDED AS FOLLOWS :

Article 1

The position to be taken by the Community within the Association Council established by the Euro-Mediterranean Agreement between the European Communities and their Member States, of the one part, and Tunisia, of the other part, concerning implementation of Article 67 of that Agreement, is that set out in the attached Draft Decision of the Association Council.

Done at Brussels,

For the Council

The President

DRAFT DECISION No ...... OF THE ASSOCIATION COUNCIL

between the European Communities and their Member States, of the one part, and Tunisia, of the other part

of ...

on coordination of the social security schemes of the European Union Member States and of Tunisia

THE ASSOCIATION COUNCIL

Having regard to the Agreement establishing an Association between the European Communities and their Member States, of the one part, and Tunisia, of the other part, [3]

[3] OJ L 97, 30 March 1998.

Whereas Articles 65, 66, 67 and 68 of the Association Agreement provide for coordination of the social security schemes of the EU Member States and of Tunisia,

HAS DECIDED AS FOLLOWS :

PART I - GENERAL PROVISIONS

Article 1

Definitions

For the purpose of application of this Decision:

a) the term "worker" means:

i) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons;

ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Decision under a social security scheme for all residents or for the whole economically active population, if such person:

-- can be identified as an employed person by virtue of the manner in which such scheme is administered or financed,

-- failing such criteria, is insured compulsorily or on an optional continued basis for some other contingency specified in Annex I, under a scheme for employed persons or under a scheme referred to in (iii), or, where no such scheme exists in the State concerned, complies with the definition given in Annex I;

iii) any person who is compulsorily insured for several of the contingencies covered by the branches dealt with in this Decision, under a standard social security scheme for the whole rural population in accordance with the criteria laid down in Annex I;

iv) any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this Decision, under a social security scheme for employed persons or for all residents or for certain categories of residents:

-if they pursue activity as an employed person

-if such person has previously been compulsorily insured for the same contingency under a scheme for employed persons of the same State;

b) 'frontier worker' means any employed person who pursues his gainful activity in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached, or who engages in the provision of services elsewhere in the territory of the same or another Member State, shall retain the status of frontier worker for a period not exceeding four months, even if he is prevented, during that period, from returning daily or at least once a week to the place where he resides;

c) 'seasonal worker' means any employed person who goes to the territory of a Member State other than the one in which he is resident to do work there of a seasonal nature for an undertaking or an employer of that State for a period which may on no account exceed eight months if he stays in the territory of the said State for the duration of this work; 'work of a seasonal nature' shall be taken to mean work which, being dependent on the succession of the seasons, automatically recurs each year;

d) 'member of the family' means any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 23(1)(a) and 34, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. Where the legislation of a Member State on sickness or maternity benefits in kind does not enable members of the family to be distinguished from the other persons to whom it applies, the term 'member of the family' shall have the meaning given to it in Annex I;

e) 'survivor' means any person defined or recognised as such by the legislation under which the benefits are granted; where, however, the said legislation regards as a survivor only a person who was living under the same roof as the deceased, this condition shall be considered satisfied if such person was mainly dependent on the deceased;

f) 'residence' means habitual stay;

g) 'stay' means temporary stay;

h) 'legislation' means, for each Member State and for Tunisia, the statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2).

The term excludes provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope. However, in so far as such provisions:

(i) serve to put into effect compulsory insurance imposed by the statutes or regulations referred to in the preceding subparagraph;

(ii) set up a scheme administered by the same institution as that which administers the schemes set up by the statutes or regulations referred to in the preceding subparagraph,

this limitation may at any time be lifted by a declaration of the State concerned specifying the schemes of such a kind to which this Decision applies. Such declaration shall be notified and published in accordance with the provisions of Article 90.

i) 'convention' means any bilateral or multilateral instrument which links or will link either two or more Member States exclusively or a Member State and Tunisia in the social security field, in respect of all or some of the branches and schemes referred to in Article 4(1) and (2), as well as agreements of any type concluded under such instruments;

j) 'competent authority' means, in respect of each Member State and of Tunisia, the Minister, Ministers or other equivalent authority responsible for social security schemes throughout or in any part of the territory of the State in question;

k) 'institution' means, in respect of each Member State and of Tunisia, the body or authority responsible for administering all or part of the legislation;

l) 'competent institution' means:

i) the institution with which the person concerned is insured at the time of the application for benefit;

ii) the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State or of Tunisia in which the institution is situated;

iii) the institution designated by the competent authority of the Member State concerned or of Tunisia;

iv) in the case of a scheme relating to an employer's liability in respect of the benefits set out in Article 4(1), either the employer or the insurer involved or, failing that, the body or authority designated by the competent authority of the Member State concerned or of Tunisia;

m) 'institution of the place of residence' and 'institution of the place of stay' mean respectively the institution which is competent to provide benefits in the place where the person concerned resides and the institution which is competent to provide benefits in the place where the person concerned is staying, under the legislation administered by that institution or, where no such institution exists, the institution designated by the competent authority of the Member State in question or of Tunisia;

n) 'competent State' means the State in whose territory the competent institution is situated;

o) 'periods of insurance' means periods of contribution or of employment as defined or recognised as periods of insurance by the legislation under which they were completed or are considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance;

p) 'periods of employment' means periods so defined or recognised by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment;

q) 'periods of residence' means periods so defined or recognised by the legislation under which they were completed or are considered as completed;

r) 'benefits' and 'pensions' mean all benefits and pensions, including all elements thereof payable out of public funds, revalorisation increases or supplementary allowances, subject to the provisions of Title II, Part 2, as well as lump-sum benefits which may be paid in lieu of pensions, and payments made by way of reimbursement of contributions;

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

(ii)'family allowances' means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family;

t) 'death grants' means any one-off payment in the event of death, excluding the lump-sum benefits referred to in point (r).

u) 'Regulation 1408/71' means, for the purpose of applying this Decision, Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community.

Article 2

Persons covered

Save as otherwise provided for, this Decision shall apply:

a) to workers of Tunisian nationality legally employed in a Member State and who are or have been subject to the legislation of one or more Member States, as well as to the members of their family legally resident in the territory of a Member State and to their survivors;

b) to workers who are nationals of a Member State legally employed in Tunisia and who are or have been subject to Tunisian legislation, as well as to the members of their family legally resident there and to their survivors.

Article 3

Equality of treatment

1. Tunisian nationals to whom the provisions of this Decision are applicable and who reside in the territory of a Member State shall be subject to the obligations and be covered by the legislation of any Member State under the same conditions as nationals thereof, subject to the special provisions contained in this Decision.

2. Similarly, the nationals of a Member State to whom the provisions of this Decision are applicable and who reside in Tunisia shall be subject to the obligations and be covered by Tunisian legislation under the same conditions as nationals thereof, subject to the special provisions contained in this Decision.

3. The provisions of paragraphs 1 and 2 shall apply to the right to elect members of the organs of social security institutions or to participate in their nomination, but shall not affect the legislative provisions of any Member State or of Tunisia relating to eligibility and methods of nomination of persons concerned to those organs.

Article 4

Matters covered

1. Taking account of the special provisions which it contains, this Decision shall apply to all legislation concerning the following branches of social security:

a) sickness and maternity benefits;

b) invalidity benefits;

c) old-age benefits;

d) survivors' benefits;

e) benefits in respect of accidents at work and occupational diseases;

f) death grants;

g) unemployment benefits;

h) family benefits.

2. This Decision shall apply to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer or shipowner in respect of the benefits referred to in paragraph 1.

3. This Decision shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended:

(a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h);

or (b) solely as specific protection for the disabled.

4. This Decision shall not apply to the provisions in the legislation of a Member State concerning the special non-contributory benefits, referred to in Annex II, Section II, the validity of which is confined to part of its territory.

5. The provisions of Title II of Part II shall not, however, affect the provisions under any legislation concerning a shipowner's liability.

6. This Decision shall not apply to social and medical assistance nor to schemes providing benefits for victims of war or of its consequences.

Article 5

Declarations by the Contracting Parties on the scope of this Decision

The Member States and Tunisia shall mention the legislations and schemes referred to in Article 4(1) and (2), the minimum benefits referred to in Article 55, and the benefits referred to in Articles 77 and 78, in the declarations notified and published in accordance with Article 90.

Article 6

Social security conventions concluded between two or more Member States

The coverage of the social security conventions linking exclusively two or more Member States, as set out in Annex III, shall be extended to the persons to whom this Decision is applicable.

Article 7

Waiving of residence clauses - Effect of compulsory insurance on reimbursement of contributions

1. Save as otherwise provided for in this Decision, old-age or survivors' benefits, pensions for accidents at work or occupational diseases and invalidity cash benefits acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated.

The first subparagraph shall also apply to lump-sum benefits granted in cases of remarriage of a surviving spouse who was entitled to a survivors' pension.

2. The provisions of paragraph 1 shall apply, except as regards invalidity benefits other than those provided in instances of accidents at work or occupational diseases, to benefits acquired pursuant to the legislation of one or more Member States, when the beneficiary is a Tunisian national and resides in Tunisia, and also to the benefits acquired pursuant to Tunisian legislation, when the beneficiary is a national of a Member State and resides in the territory of that State or of any other Member State.

3. Where, under the legislation of a Member State, reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition shall not be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State.

Article 8

Special non-contributory benefits

1. Notwithstanding the provisions of Article 7 and Title II of Part II, persons to whom this Decision applies shall be granted the special non-contributory cash benefits referred to in Article 4(3) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IV. Such benefits shall be accorded by and at the expense of the institution of the place of residence.

2. Where entitlement to a benefit covered by paragraph 1 and granted in the form of a supplement is subject, under the legislation of a Member State, to receipt of a benefit covered by Article 4(1)(a) to (h), and no such benefit is due under that legislation, any corresponding benefit accorded under the legislation of any other Member State shall be treated as a benefit accorded under the legislation of the first Member State for the purposes of granting the supplement.

3. Where the granting of an invalidity or disability benefit covered by paragraph 1 is subject, under the legislation of a Member State, to the condition that the invalidity or disability should be diagnosed for the first time in the territory of that Member State, this condition shall be deemed to be fulfilled where such diagnosis is made for the first time in the territory of another Member State.

Article 9

Revalorisation of benefits

Rules for revalorisation laid down by the legislation of a Member State or of Tunisia shall apply to benefits due under that legislation taking into account the provisions of this Decision.

Article 10

Prevention of overlapping of benefits

1. This Decision can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance. However, this provision shall not apply to benefits in respect of invalidity, old age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States, in accordance with the provisions of Articles 43, 45(2) and (3), 48, 55 and 56 or Article 65(1)(b).

2. Save as otherwise provided for in this Decision, the provisions of the legislations of a Member State governing the reduction, suspension or withdrawal of benefits in cases of overlapping with other social security benefits or any other form of income may be invoked against the beneficiary even where such benefits were acquired under the legislation of another Member State or of Tunisia or where such income was acquired in the territory of another Member State or of Tunisia.

The provisions of Tunisian legislation governing the reduction, suspension or withdrawal of benefits in cases of overlapping with other social security benefits or any other form of income may be invoked against the beneficiary even where such benefits were acquired under the legislation of one or more Member States or where such income was acquired in the territory of one or more Member States.

3. However, the provisions of paragraph 2 shall not be applied when the person concerned receives benefits of the same kind in respect of invalidity, old age or death (pensions) awarded:

-by the institutions of two or more Member States in accordance with Articles 48, 56 and 66 of this Decision;

-by a Tunisian institution, in accordance with the provisions of a social security convention concluded between Tunisia and a Member State.

4. The provisions of the legislation of a Member State concerning reduction, suspension or withdrawal of benefit in the case of a person in receipt of invalidity benefits or anticipatory old-age benefits pursuing gainful activity may be invoked against such person even though he is pursuing his activity in the territory of another Member State or of Tunisia.

The provisions of Tunisian legislation governing reduction, suspension or withdrawal of benefit in the case of a person in receipt of invalidity benefits or early old-age benefits pursuing gainful activity may be invoked against such person even though he is pursuing his activity in the territory of a Member State.

PART II - PROVISIONS GOVERNING APPLICATION OF MEMBER STATES' SOCIAL SECURITY SCHEMES TO TUNISIAN WORKERS AND TO THE MEMBERS OF THEIR FAMILY

TITLE I

DETERMINATION OF THE APPLICABLE LEGISLATION

Article 11

General rule

1. A worker to whom this Decision is applicable shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.

2. Subject to Articles 12 to 17:

(a) a person employed in the territory of one Member State shall be subject to the legislation of that State, even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;

(b) a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of that State;

(c) a worker to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the foregoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 12 to 17, shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone.

Article 12

Special rules

1. Article 11(2)(a) shall apply subject to the following exceptions and circumstances:

(a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another worker who has completed his term of posting.

(b) If the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned is posted or the body designated by that authority has given its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months.

2. A worker normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows:

(a) A worker who is a member of the travelling, flying or sailing personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office in the territory of a Member State shall be subject to the legislation of that latter State. However,

(i) where the said undertaking has a branch or permanent representation in the territory of a Member State other than that in which it has its registered office, a person employed by such branch or permanent representation shall be subject to the legislation of the Member State in whose territory such branch or permanent representation is situated;

(ii) where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or branch or permanent representation in that territory.

(b) A worker other than that referred to in (a) shall be subject:

(i) to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered office or place of business in the territory of different Member States;

(ii) to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity.

3. A worker employed in the territory of one Member State by an undertaking which has its registered office in the territory of another Member State and which straddles the common frontier of these States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office.

Article 13

Special rules applicable to seafarers

Article 11(2)(b) shall apply subject to the following exceptions and circumstances:

1. A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State, who is posted by that undertaking on board a vessel flying the flag of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State under the conditions contained in Article 12(1).

2. A worker who does not normally pursue his activity as an employed person at sea but performs work in the territorial waters or in a port of a Member State on a vessel flying the flag of another Member State within those territorial waters or in that port, but is not a member of the crew of the vessel, shall be subject to the legislation of the first Member State.

3. A worker employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in the territory of another Member State shall be subject to the legislation of the latter State if he is resident in its territory; the undertaking or person paying the remuneration shall be regarded as the employer for the purpose of the said legislation.

Article 14

Special rules applicable to persons simultaneously pursuing activity as employed persons and as self-employed persons in the territory of different Member States

A person who simultaneously pursues an activity as an employed person and an activity as a self-employed person in the territory of different Member States shall be subject to the legislation of the Member State in whose territory he pursues an activity as an employed person or, if he pursues such an activity in the territory of two or more Member States, to the legislation determined in accordance with Article 12(2) or (3).

Article 15

Miscellaneous provisions

1. A person referred to in Article 12(2) and (3) shall be treated, for the purpose of applying the legislation determined in accordance with these provisions, as if he pursued all his gainful activity or activities in the territory of the Member State concerned.

2. The provisions of the legislation of a Member State under which a pensioner who is pursuing a gainful activity is not subject to compulsory insurance in respect of such activity shall also apply to a pensioner whose pension was acquired under the legislation of another Member State, unless the person concerned expressly asks to be so subject by applying to the institution designated by the competent authority of the first Member State.

Article 16

Rules concerning voluntary insurance or optional continued insurance

1. Articles 11 to 15 shall not apply to voluntary insurance or to optional continued insurance unless, in respect of one of the branches referred to in Article 4, only a voluntary scheme of insurance exists in a Member State.

2. Where application of the legislations of two or more Member States entails overlapping of insurance:

-under a compulsory insurance scheme and one or more voluntary or optional continued insurance schemes, the person concerned shall be subject exclusively to the compulsory insurance scheme;

-under two or more voluntary or optional continued insurance schemes, the person concerned may join only the voluntary or optional continued insurance scheme for which he has opted.

3. However, in respect of invalidity, old age and death (pensions), the person concerned may join the voluntary or optional continued insurance scheme of a Member State, even if he is compulsorily subject to the legislation of another Member State, to the extent that such overlapping is explicitly or implicitly admitted in the first Member State.

Article 17

Exceptions to the provisions of Articles 11 to 16

Two or more Member States, the competent authorities of those States or the bodies designated by those authorities may by common agreement provide for exceptions to the provisions of Articles 11 to 16 in the interest of certain categories of persons or of certain persons.

Article 18

Special rules concerning recipients of pensions due under the legislation of one or more Member States

The recipient of a pension due under the legislation of a Member State or of pensions due under the legislation of several Member States who resides in the territory of another Member State may, at his request, be exempted from the legislation of the latter State, provided that he is not subject to that legislation by virtue of his pursuing a gainful activity.

TITLE II - SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OF BENEFITS

CHAPTER I

SICKNESS AND MATERNITY

Section 1

Common provisions

Article 19

Aggregation of periods of insurance, employment or residence

1. The competent institution of a Member State whose legislation makes the acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence shall, to the extent necessary, take account of periods of insurance, employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it administers.

2. The provisions of paragraph 1 shall apply to seasonal workers, even in respect of periods prior to any break in insurance exceeding the period allowed by the legislation of the competent State, provided, however, that the person concerned has not ceased to be insured for a period exceeding four months.

Section 2

Workers and members of their family

Article 20

Residence in a Member State other than the competent State - General rules

1. A worker residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account - where appropriate - of the provisions of Article 19, shall receive in the State in which he is resident:

(a) benefits in kind provided on behalf of the competent institution by the institution of the place of residence, in accordance with the provisions of the legislation administered by that institution as though he were insured with it;

(b) cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

2. The provisions of paragraph 1 shall apply by analogy to members of the family who reside in the territory of a Member State other than the competent State in so far as they are not entitled to such benefits under the legislation of the State in whose territory they reside.

Where the members of the family reside in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, the benefits in kind they receive shall be considered as being on behalf of the institution with which the employed or self-employed person is insured, unless the spouse or the person looking after the children pursues a gainful activity in the territory of the said Member State.

Article 21

Frontier workers and members of their family - Special rules

A frontier worker may also obtain benefits in the territory of the competent State. Such benefits shall be provided by the competent institution in accordance with the provisions of the legislation of that State as though the person concerned resided therein. The members of the family may receive benefits under the same conditions; however, receipt of such benefits shall, except in urgent cases, be conditional upon an agreement between the States concerned or between the competent authorities of those States or, in its absence, on prior authorisation by the competent institution.

Article 22

Stay in or transfer of residence to the competent State

1. A worker referred to in Article 20(1) who is staying in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State as though he were resident there, even if he has already received benefits for the same case of sickness or maternity before his stay.

2. Paragraph 1 shall apply by analogy to the members of the family referred to in Article 20(2).

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

3. Paragraphs 1 and 2 shall not apply to frontier workers nor to the members of their families.

4. A worker and the members of his family referred to in Article 20 who transfer their residence to the territory of the competent State shall receive benefits in accordance with the legislation of that State even if they have already received benefits for the same case of sickness or maternity before transferring their residence.

Article 23

Stay outside the competent State - Return to or transfer of residence to another Member State during sickness or maternity - Need to go to another Member State in order to receive appropriate treatment

1. A worker who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account - where appropriate - of the provisions of Article 19, and:

(a) whose condition necessitates immediate benefits during a stay in the territory of another Member State;

(b) who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution to return to the territory of the Member State where he resides, or to transfer his residence to the territory of another Member State;

(c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition,

shall be entitled:

(i) to benefits in kind provided on behalf of the competent institution by the institution of the place of stay or residence, in accordance with the legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State;

(ii) to cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay or residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

2. The authorisation required under 1(b) above may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or to the medical treatment being given.

The authorisation required under 1(c) above may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides, and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease.

3. The provisions of paragraphs 1 and 2 shall apply by analogy to the members of the worker's family.

However, for the purpose of applying 1(a)(i) and (c)(i) above to the members of the family referred to in Article 20(2) who reside in the territory of a Member State other than the one in whose territory the worker resides:

(a) benefits in kind shall be provided on behalf of the institution of the Member State in whose territory the members of the family are residing by the institution of the place of stay, in accordance with the legislation which it administers, as though the worker were insured there. The length of the period during which benefits are provided shall be governed, however, by the legislation of the Member State in whose territory the members of the family are residing;

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

4. The fact that the provisions of paragraph 1 apply to a worker shall not affect the right of his family members to benefit.

Article 24

Activity pursued in a Member State other than the competent State - Stay in the State where the activity is pursued

A worker referred to in Articles 12, 13, 14 and 17, as well as the members of his family accompanying him, shall be covered by the provisions of Article 23(1)(a) in respect of any condition requiring benefits during a stay in the territory of the Member State where the worker pursues his gainful activity or whose flag is flown by the vessel on which he pursues his gainful activity.

Article 25

Calculation of cash benefits

1. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be founded on average earnings or on an average contributions basis, shall determine such average earnings or average contributions basis exclusively by reference to the earnings determined or contributions bases applied under the said legislation.

2. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings shall take account exclusively of the standard earnings, or where appropriate, of the average of standard earnings for the periods completed under the said legislation.

3. The competent institution of a Member State under whose legislation the amount of cash benefits varies with the number of family members, shall also take into account the members of the family of the person concerned who are resident in the territory of another Member State as if they were resident in the territory of the competent State.

Article 26

Substantial benefits in kind

1. Where the right of a worker or a member of his family to a prosthesis, a major appliance or other substantial benefits in kind has been recognised by the institution of a Member State before he becomes insured with the institution of another Member State, the said worker shall receive such benefits at the expense of the first institution, even if they are granted after he becomes insured with the second institution.

2. The list of benefits to which the provisions of paragraph 1 are applicable is that compiled by the Administrative Commission on Social Security for Migrant Workers referred to in Article 80 of Regulation 1408/71 as specified in Article 1(u) of this Decision.

Section 3

Unemployed persons and members of their family

Article 27

1. The provisions of Article 20 shall apply by analogy to a wholly unemployed frontier worker who satisfies the conditions stipulated by the legislation of the competent State for entitlement to sickness insurance benefits, and also to the members of his family.

2. Where an unemployed person, other than one referred to in paragraph 1, satisfies the conditions for entitlement to sickness and maternity benefits of the legislation of the Member State responsible for bearing the cost of unemployment benefits, taking account - where appropriate - of the provisions of Article 19, the members of his family shall receive such benefits, irrespective of the Member State in whose territory they reside or are staying. Such benefits shall be provided:

(i) with regard to benefits in kind, by the institution of the place of residence or stay, in accordance with the legislation which it administers, on behalf of the competent institution of the Member State which is responsible for bearing the cost of unemployment benefits;

(ii) with regard to cash benefits, by the competent institution of the Member State which is responsible for bearing the cost of unemployment benefits, in accordance with the legislation which it administers.

3. Without prejudice to any provisions of the legislation of a Member State which permit an extension of the period during which sickness benefits may be granted, the period provided for in paragraph 1 may, in cases of force majeure, be extended by the competent institution within the limit fixed by the legislation administered by that institution.

Section 4

Pension claimants and members of their family

Article 28

Right to benefits in kind in cases of cessation of the right to benefits from the institution which was last competent

1. A worker, members of his family or his survivors who, during the investigation of a claim for pension, cease to be entitled to benefits in kind under the legislation of the Member State last competent, shall nevertheless receive such benefits under the following conditions: benefits in kind shall be provided in accordance with the provisions of the legislation of the Member State in whose territory the person or persons concerned reside, provided that they are entitled to such benefits under that legislation or would be entitled to them under the legislation of another Member State if they were residing in the territory of that State, taking account - where appropriate - of the provisions of Article 19.

2. A pension claimant who is entitled to benefits in kind under the legislation of a Member State which obliges the person concerned to pay the corresponding sickness insurance contributions himself during the investigation of his pension claim shall cease to be entitled to benefits in kind at the end of the second month for which he has not paid the contributions due.

3. Benefits in kind provided in accordance with the provisions of paragraph 1 shall be chargeable to the institution which has collected contributions in accordance with the provisions of paragraph 2; where no contributions are payable under the provisions of paragraph 2, the institution responsible for bearing the cost of the benefits in kind after awarding the pension in accordance with the provisions of Article 30 shall refund to the institution of the place of residence the amount of the benefits provided.

Section 5

Pensioners and members of their family

Article 29

Pensions payable under the legislation of several Member States in cases where there is a right to benefits in the country of residence

A pensioner who is entitled to draw pensions under the legislation of two or more Member States, of which one is that of the Member State in whose territory he resides, and who is entitled to benefits under the legislation of the latter Member State, taking account - where appropriate - of the provisions of Article 19 and Annex VI, shall, together with the members of his family, receive such benefits from the institution of the place of residence and at the expense of that institution as though the person concerned were a pensioner whose pension was payable solely under the legislation of the latter Member State.

Article 30

Pensions payable under the legislation of one or more States in cases where there is no right to benefits in the country of residence

1. A pensioner who is entitled to a pension under the legislation of one Member State or to pensions under the legislations of two or more Member States and who is not entitled to benefits under the legislation of the Member State in whose territory he resides shall, nevertheless, receive such benefits for himself and for the members of his family, in so far as he would, taking account - where appropriate - of the provisions of Article 19 and Annex VI, be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of pensions if he were resident in the territory of the State concerned. Benefit shall be provided under the following conditions:

(a) benefits in kind shall be provided on behalf of the institution referred to in paragraph 2 by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the State in whose territory he resides and were entitled to such benefits;

(b) cash benefits shall, where appropriate, be provided by the competent institution as determined by the provisions of paragraph 2, in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State.

2. In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution determined according to the following rules:

(a) where the pensioner is entitled to the said benefits under the legislation of a single Member State, the cost shall be borne by the competent institution of that State;

(b) where the pensioner is entitled to the said benefits under the legislation of two or more Member States, the cost thereof shall be borne by the competent institution of the Member State to whose legislation the pensioner has been subject for the longest period of time; should the application of this rule result in several institutions being responsible for the cost of benefits, the cost shall be borne by whichever of those institutions administers the legislation to which the pensioner was last subject.

Article 31

Pensions payable under the legislation of one or more Member States other than the country of residence in cases where there is a right to benefits in the latter country

Where a pensioner entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, resides in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, nor any pension is payable, the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of one of the Member States competent in respect of pensions, determined according to the rules laid down in Article 30(2), to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institution if they resided in the territory of the Member State where that institution is situated.

Article 32

Residence of members of the family in a State other than the one in which the pensioner resides - Transfer of residence to the State where the pensioner resides

1. Members of the family of a pensioner entitled to a pension under the legislation of one Member State or to pensions under the legislations of two or more Member States who reside in the territory of a Member State other than the one in which the pensioner resides shall, where he is entitled to such benefits under the legislation of one Member State, receive benefits as though the pensioner were resident in the same territory as themselves. Benefits shall be provided under the following conditions:

(a) benefits in kind shall be provided by the institution of the place of residence of the members of the family, in accordance with the legislation which that institution administers, the cost being borne by the institution of the pensioner's place of residence;

(b) cash benefits shall, where appropriate, be provided by the competent institution determined under the provisions of Article 29 or 30(2), in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence of the members of the family, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

2. The members of the family referred to in paragraph 1 who transfer their residence to the territory of the Member State where the pensioner resides, shall receive:

(a) benefits in kind under the provisions of the legislation of that State, even if they have already received benefits for the same case of sickness or maternity before transferring their residence;

(b) cash benefits provided, where appropriate, by the competent institution determined by the provisions of Article 29 or 30(2), in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence of the pensioner, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

Article 33

Substantial benefits in kind

The provisions of Article 26 shall apply by analogy to pensioners.

Article 34

Stay of pensioner and/or members of his family in a State other than the State in which they reside

A pensioner entitled to a pension or pensions under the legislation of one Member State or to pensions under the legislations of two or more Member States who is entitled to benefits under the legislation of one of those Member States shall, together with members of his family who are staying in the territory of a Member State other than the one in which they reside, receive:

(a) benefits in kind provided by the institution of the place of stay, in accordance with the legislation which it administers, the cost being borne by the institution of the pensioner's place of residence;

(b) cash benefits provided, where appropriate, by the competent institution determined by the provisions of Article 29 or 30(2), in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay, these benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State.

Article 35

Contributions payable by pensioners

1. The institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity benefit cover shall be authorised to make such deductions, calculated in accordance with the said legislation, from the pension payable by it, to the extent that the cost of the benefits provided under Articles 29, 30, 31, 32 and 34 is borne by an institution of the said Member State.

2. Where, in the cases referred to in Article 31, a pensioner is subject, by virtue of his residence, to the payment of contributions or similar deductions for sickness and maternity benefit cover under the legislation of the Member State in whose territory he resides, such contributions shall not be payable.

Article 36

General provisions

1. For the purposes of Articles 30, 31, 32 and 34, a pensioner who is in receipt of two or more pensions due under the legislation of a single Member State shall be regarded as a pensioner drawing a pension under the legislation of one Member State, within the meaning of these provisions.

2. Articles 29 to 35 shall not apply to a pensioner drawing a pension nor to members of his family entitled to benefits under the legislation of a Member State as a result of pursuing gainful activity. In such cases the person concerned shall, for the purposes of applying this Chapter, be regarded as an employed person or as a member of an employed person's family.

Section 6

Miscellaneous provisions

Article 37

Scheme applicable where there are a number of schemes in the country of residence or stay - Previous illness - Maximum period during which benefits are granted

1. Subject to paragraph 2, where the legislation of the country of stay or residence contains several sickness or maternity insurance schemes, the provisions applicable under Articles 20, 22(1), 23, 27, 28, 30(1), 32(1) or 34 shall be those of the scheme covering manual workers in the steel industry. Where, however, the said legislation includes a special scheme for workers in mines and similar undertakings, the provisions of that scheme shall apply to the said category of workers and members of their family, provided the institution of the place of stay or residence to which application is made is competent to administer that scheme.

2. Where, under the legislation of a Member State, the granting of benefits is made conditional on the origin of the illness, that condition shall apply neither to workers nor to the members of their family to whom this Decision applies, regardless of the Member State in whose territory they reside.

3. Where the legislation of a Member State fixes a maximum period for the granting of benefits, the institution which administers that legislation may, where appropriate, take account of the period during which the benefits have already been provided by the institution of another Member State for the same case of sickness or maternity.

Section 7

Reimbursements between institutions

Article 38

1. Benefits in kind provided in accordance with the provisions of this Chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded.

2. The reimbursements referred to in paragraph 1 shall be determined and made in accordance with the procedure laid down by the Decision referred to in Article 91, either on proof of actual expenditure or via lump-sum payments.

In the latter case, the lump-sum payments shall be such as to ensure that the refund is as close as possible to actual expenditure.

3. Two or more Member States, or the competent authorities of such States, may provide for other methods of reimbursement or waive reimbursement between the institutions coming under their jurisdiction.

CHAPTER 2

INVALIDITY

Section 1

Workers subject only to legislations under which the amount of invalidity benefits is independent of the duration of the periods of insurance

Article 39

General provisions

1. A worker who has been successively or alternately subject to the legislations of two or more Member States and who has completed periods of insurance exclusively under legislations according to which the amount of invalidity benefits is independent of the duration of periods of insurance shall receive benefits in accordance with Article 41. This Article shall not affect pension increases or supplements in respect of children, granted in accordance with Chapter 7.

2. Annex V, Part A, lists legislation of the kind mentioned in paragraph 1 in force in the territory of each of the Member States concerned.

Article 40

Consideration of periods of insurance or of residence completed under the legislations to which a worker was subject for the acquisition, retention or recovery of the right to benefits

1. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraphs 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, to the extent necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general or a special scheme. For that purpose, it shall take account of such periods as if they had been completed under the legislation it administers.

2. Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific job, periods completed under the legislations of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same job.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of such benefits, such periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of such schemes.

Article 41

Award of benefits

1. The institution of a Member State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred shall determine, in accordance with the provisions of that legislation, whether the person concerned satisfies the conditions for entitlement to benefits, taking account - where appropriate - of Article 40.

2. A person who satisfies the conditions referred to in paragraph 1 shall receive the benefits only from the said institution, in accordance with the legislation which it administers.

3. A person who is not entitled to benefits under paragraph 1 shall receive the benefits to which he is still entitled under the legislation of another Member State taking account - where appropriate - of Article 40.

4. If the legislation referred to in paragraphs 2 or 3 provides that the amount of the benefits shall be determined taking into account the existence of members of the family other than the children, the competent institution shall also take into consideration those members of the family of the person concerned who are residing in the territory of another Member State, as if they were residing in the territory of the competent State.

5. If the legislation referred to in paragraphs 2 or 3 lays down provisions for the reduction, suspension or withdrawal of benefits in the event of overlapping with benefits of a different kind within the meaning of Article 49(2) or with other income, Articles 49(3) and 51(5) shall apply by analogy.

Section 2

Workers subject either only to legislations under which the amount of invalidity benefit depends on the duration of periods of insurance or of residence, or to legislations of that type and of the type referred to in Section 1

Article 42

General provisions

1. A worker who has been successively or alternately subject to the legislations of two or more Member States, of which at least one is not of the type referred to in Article 39(1), shall receive benefits under the provisions of Chapter 3, which shall apply by analogy, taking into account the provisions of paragraph 4.

2. However, a worker who suffers incapacity for work leading to invalidity while subject to a legislation listed in Annex V, Part A, shall receive benefits in accordance with the provisions of Article 39(1) on the following conditions:

-that he satisfies the conditions of that legislation or other legislations of the same type, taking account - where appropriate - of Article 40, but without the need for recourse to periods of insurance completed under legislations not listed in Annex V, Part A,

and

-that he does not satisfy the conditions required for the acquisition of the right to invalidity benefits under a legislation not listed in Annex V, Part A,

and

-that he does not assert any claims to old-age benefits, account being taken of the second sentence of Article 46(2).

3. (a) For the purpose of determining the right to benefits under the legislation of a Member State, listed in Annex V, Part A, which makes the granting of invalidity benefits conditional upon the person concerned having received cash sickness benefits or having been incapable for work during a specified period, where a worker who has been subject to that legislation suffers incapacity for work followed by invalidity while subject to the legislation of another Member State, account shall be taken of the following, without prejudice to Article 39(1):

(i) of any period during which, in respect of such incapacity for work, he received, under the legislation of the second Member State, cash sickness benefits, or, in lieu thereof, continued to receive his wage;

(ii) of any period during which, in respect of the invalidity which followed the said incapacity for work, he received, under the legislation of the second Member State, benefits within the meaning of this Chapter 2 and the following Chapter 3, as though it were a period during which cash sickness benefits had been accorded to him under the legislation of the first Member State or during which he was incapable of working within the meaning of that legislation.

(b) The right to invalidity benefits under the legislation of the first Member State shall be acquired either upon expiry of the preliminary period of compensation for sickness, as required by that legislation, or upon expiry of the preliminary period of incapacity of work as required by that legislation, but not before:

(i) the date of acquisition of the right to invalidity benefits referred to in subparagraph (a)(ii) under the legislation of the second Member State,

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

4. A decision taken by an institution of a Member State concerning the degree of invalidity of a claimant shall be binding on the institution of any other Member State concerned, provided that the concordance between the legislation of these States on conditions relating to the degree of invalidity is acknowledged in Annex V of Regulation 1408/71 as specified in Article 1(u) of the Decision.

Section 3

Aggravation of invalidity

Article 43

1. In the event of aggravation of an invalidity for which a worker is receiving benefits under the legislation of a single Member State, the following provisions shall apply:

(a) if the person concerned has not been subject to the legislation of another Member State since receiving the benefits, the competent institution of the first State shall be bound to grant the benefits, taking the aggravation into account, in accordance with the legislation which it administers;

(b) if the person concerned has been subject to the legislation of one or more of the other Member States since receiving the benefits, the benefits shall be granted to him, taking the aggravation into account, in accordance with Articles 39(1) or 40(1) or (2), as appropriate;

(c) if the total amount of the benefit or benefits due under subparagraph (b) is lower than the amount of the benefit which the person concerned was receiving at the expense of the institution previously liable for payment, such institution shall be obliged to pay him a supplement equal to the difference between the two amounts;

(d) if, in the case referred to in subparagraph (b), the institution responsible for the initial incapacity is a Dutch institution, and if:

(i) the illness which caused the aggravation is the same as the one which gave rise to the granting of benefits under Dutch legislation,

and

(ii) the said illness is an occupational disease within the meaning of the legislation of the Member State to which the person concerned was last subject and entitles him to payment of the supplement referred to in Article 65(1)(b),

and

(iii) the legislation or legislations to which the person concerned has been subject since receiving benefits is or are listed in Annex V, Part A,

the Dutch institution shall continue to provide the initial benefit after the aggravation occurs, and the benefit due under the legislation of the last Member State to which the person concerned was subject shall be reduced by the amount of the Dutch benefit;

(e) if, in the case referred to in subparagraph (b), the person concerned is not entitled to benefits at the expense of an institution of another Member State, the competent institution of the first State shall be bound to grant the benefits, in accordance with the provisions of the legislation of that State, taking into account the aggravation and, where appropriate, Article 40.

2. In the event of aggravation of an invalidity for which a worker is receiving benefits under the legislation of two or more Member States, the benefits shall be granted to him, taking the aggravation into account, in accordance with Article 42(1).

Section 4

Resumption of provision of benefits after suspension or withdrawal - Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 41

Article 44

Determination of the institution responsible for providing benefits when provision of invalidity benefits is resumed

1. If provision of benefits is to be resumed after suspension, such provision shall, without prejudice to Article 45, be the responsibility of the institution or institutions which were responsible for provision of the benefits at the time of their suspension.

2. If, after withdrawal of benefits, the condition of the person concerned warrants the granting of further benefits, they shall be granted in accordance with the provisions of Articles 39(1) or 42(1) or (2), as appropriate.

Article 45

Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 41

1. Invalidity benefits shall, where appropriate, be converted into old-age benefits under the conditions laid down by the legislation or legislations under which they were accorded and in keeping with the provisions of Chapter 3.

2. Where a person receiving invalidity benefits can establish a claim to old-age benefits under the legislation of one or more of the Member States, in accordance with Article 54, any institution which is responsible for providing invalidity benefits under the legislation of a Member State shall continue to provide such a person with the invalidity benefits to which he is entitled under the legislation which it administers until the provisions of paragraph 1 become applicable as regards that institution or, if not, as long as the person concerned fulfils the conditions for such benefits.

3. Where invalidity benefits granted in accordance with Article 41 under the legislation of a Member State are converted into old-age benefits and where the person concerned does not yet satisfy the conditions required by the legislation or legislations of one or more of the other Member States to receive entitlement to those benefits, the person concerned shall receive, from that or those Member States, as from the date of the conversion, invalidity benefits granted in accordance with Chapter 3 as if that Chapter had been applicable at the time when his incapacity for work followed by invalidity occurred, until the person concerned satisfies the qualifying conditions for old-age benefits laid down by the other national legislation or legislations concerned or, where such conversion is not provided for, as long as he has a right to invalidity benefits under the legislation or legislations concerned.

4. The invalidity benefits provided under Article 39 shall be reviewed pursuant to Chapter 3 as soon as the beneficiary satisfies the qualifying conditions for invalidity benefits laid down by a legislation not listed in Annex V, Part A, or as soon as he receives old-age benefits under the legislation of another Member State.

CHAPTER 3

OLD AGE AND DEATH (PENSIONS)

Article 46

General provisions for the award of benefits where a person has been subject to the legislation of two or more Member States

1. The rights to benefits of a worker who has been subject to the legislation of two or more Member States, or of his survivors, shall be determined in accordance with the provisions of this Chapter.

2. Save as otherwise provided for in Article 54, the processing of a claim for an award submitted by an employed person shall have regard to all the legislations to which the person concerned has been subject and shall be undertaken once he submits a claim. Exception shall be made to this rule if the person concerned expressly asks for postponement of the award of old-age benefits to which he would be entitled under the legislation of one or more of the Member States.

3. This Chapter shall not apply to increases in pensions or to supplements for pensions in respect of children or to orphan's pensions granted in accordance with the provisions of Chapter 7.

Article 47

Consideration of periods of insurance or of residence completed under the legislations to which a worker was subject for the acquisition, retention or recovery of the right to benefits

1. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraphs 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, to the extent necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general or a special scheme. For that purpose, it shall take account of those periods as if they had been completed under the legislation it administers.

2. Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific job, periods completed under the legislations of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same job. If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of such benefits, such periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of such schemes.

3. The periods of insurance completed under a special scheme of a Member State shall be taken into account under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, of another Member State for the acquisition, retention or recovery of the right to benefits, subject to the condition that the person concerned has been affiliated to one or other of such schemes, even if such periods have already been taken into account in the latter State under a scheme referred to in paragraph 2 or in the first sentence of paragraph 3.

4. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits conditional upon the person concerned being insured at the time of the materialisation of the risk, this condition shall be regarded as having been satisfied in the event of insurance under the legislation of another Member State, in accordance with the procedures provided for in Annex VI for each Member State concerned.

Article 48

Award of benefits

1. Where the conditions required by the legislation of a Member State for entitlement to benefits have been satisfied without having to apply Article 47 or Article 42(3), the following rules shall apply:

(a) the competent institution shall calculate the amount of the benefit that would be due:

(i) firstly, only under the legislation which it administers;

(ii) secondly, pursuant to paragraph 2;

(b) the competent institution may, however, waive the calculation to be carried out in accordance with (a)(ii) if the result of that calculation, apart from differences arising from the use of round figures, is equal to or lower than the result of the calculation carried out in accordance with (a)(i), in so far as that institution does not apply any legislation containing rules against overlapping as referred to in Articles 50 and 51 or if the aforementioned institution applies a legislation containing rules against overlapping in the case referred to in Article 51, provided that the said legislation lays down that benefits of a different kind shall be taken into consideration only on the basis of the relation of the periods of insurance or of residence completed under that legislation alone to the periods of insurance or of residence required by that legislation in order to qualify for full benefit entitlement.

Annex V, Part B, lists for each Member State concerned the cases where the two calculations would lead to such a result.

2. Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 47 and or Article 42(3), the following rules shall apply:

(a) the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim if all the periods of insurance and/or of residence, completed under the legislation of the Member States to which the employed or self-employed person was subject, had been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the said amount shall be regarded as being the theoretical amount referred to in this paragraph (a);

(b) the competent institution shall subsequently determine the actual amount of the benefit on the basis of the theoretical amount referred to in (a) in accordance with the ratio of the duration of the periods of insurance or of residence completed before the materialisation of the risk under the legislation which it administers to the total duration of the periods of insurance and of residence completed before the materialisation of the risk under the legislations of all the Member States concerned.

3. The person concerned shall be entitled to the highest amount calculated in accordance with paragraphs 1 and 2 from the competent institution of each Member State without prejudice - as the case may be - to any application of the provisions concerning reduction, suspension or withdrawal provided for by the legislation under which such benefit is due.

Where that is the case, the comparison to be carried out shall relate to the amounts determined after the application of the said rules.

Article 49

General provisions relating to the reduction, suspension or withdrawal rules applicable to benefits in respect of invalidity, old age or survivors under the legislations of the Member States

1. For the purposes of the Chapter, overlapping of benefits of the same kind shall have the following meaning: all overlapping of benefits in respect of invalidity, old age and survivors calculated or provided on the basis of periods of insurance and/or residence completed by one and the same person.

2. For the purposes of this Chapter, overlapping of benefits of different kinds means all overlapping of benefits that cannot be regarded as being of the same kind within the meaning of paragraph 1.

3. The following rules shall be applicable for the application of the provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State in the event of overlapping of a benefit in respect of invalidity, old age or survivors with a benefit of the same kind or a benefit of a different kind or with other income:

(a) account shall be taken of the benefits acquired under the legislation of another Member State or of other income acquired in another Member State only where the legislation of the first Member State provides for benefits or income acquired abroad to be taken into account;

(b) account shall be taken of the amount of benefits to be granted by another Member State before deduction of taxes, social security contributions and other individual deductions;

(c) no account shall be taken of the amount of benefits acquired under the legislation of another Member State which are awarded on the basis of voluntary or continued optional insurance;

(d) where the provisions on reduction, suspension or withdrawal are applicable under the legislation of only one Member State on account of the fact that the person concerned receives benefits of a similar or different kind due under the legislation of other Member States or other income acquired in the territory of other Member States, the benefit due under the legislation of the first Member State may be reduced only within the limit of the amount of the benefits due under the legislation or the income acquired in the territory of the other Member States.

Article 50

Special provisions applicable in the event of overlapping of benefits of the same kind payable under the legislation of two or more Member States

1. The provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State shall not be applicable to a benefit calculated in accordance with Article 48(2).

2. The provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State shall apply to a benefit calculated in accordance with Article 47(1)(a)(i) only if the benefit concerned is:

(a) either a benefit, which is referred to in Annex V, Part C, the amount of which does not depend on the length of the periods of insurance or residence completed,

(b) a benefit, the amount of which is determined on the basis of a credited period deemed to have been completed between the date on which the risk materialised and a later date. In the latter case, the said provisions shall apply in the case of overlapping of such a benefit:

(i) either with a benefit of the same kind, except where an agreement has been concluded between two or more Member States providing that one and the same credited period may not be taken into account two or more times;

(ii) or with a benefit of the type referred to in (a).

The benefits referred to in (a) and (b) and the agreements are given in Annex V, Part C.

Article 51

Special provisions applicable in the event of overlapping of one or more benefits referred to in Article 49(1) with one or more benefits of a different kind or with other income, where two or more Member States are concerned

1. If the receipt of benefits of a different kind or other income entails the reduction, suspension or withdrawal of two or more benefits referred to in Article 48(1)(a)(i), the amounts which would not be paid in strict application of the provisions concerning reduction, suspension or withdrawal set out under the legislation of the Member States concerned shall be divided by the number of benefits subject to reduction, suspension or withdrawal.

2. Where the benefit in question is calculated in accordance with Article 48(2), the benefit or benefits of a different kind from the other Member States or other income and all other elements provided for by the legislation of the Member State for the application of the provisions in respect of reduction, suspension or withdrawal shall be taken into account in proportion to the periods of insurance and/or residence referred to in Article 48(2)(b) and used for the calculation of the said benefit.

3. If the receipt of benefits of a different kind or of other income entails the reduction, suspension or withdrawal of one or more benefits referred to in Article 48(1)(a)(i) and of one or more benefits referred to in Article 48(2), the following rules shall apply:

(a) in the case of a benefit or benefits referred to in Article 48(1)(a)(i), the amounts which would not be paid in strict application of the provisions concerning reduction, suspension or withdrawal set out under the legislation of the Member States concerned shall be divided by the number of benefits subject to reduction, suspension or withdrawal;

(b) in the case of a benefit or benefits calculated in accordance with Article 48(2), the reduction suspension or withdrawal shall be carried out in accordance with paragraph 2.

4. Where, in the case referred to in paragraphs 1 and 3(a), the legislation of a Member State provides that, for the application of provisions concerning reduction, suspension or withdrawal, account shall be taken of benefits of a different kind and/or other income and all other elements in proportion to the periods of insurance referred to in Article 48(2)(b), the division provided for in the said paragraphs shall not apply in respect of that Member State.

5. All the abovementioned provisions shall apply by analogy where the legislation of one or more Member States provides that the right to a benefit cannot be acquired in the case where the person concerned is in receipt of a benefit of a different kind due under the legislation of another Member State or of other income.

Article 52

Additional provisions for the calculation of benefits

1. For the calculation of the theoretical and pro rata amounts referred to in Article 48(2), the following rules shall apply:

(a) where the total length of the periods of insurance and of residence completed before the risk materialised under the legislations of all the Member States concerned is longer than the maximum period required by the legislation of one of those States for receipt of full benefit, the competent institution of that State shall take into consideration this maximum period instead of the total length of the periods completed; this method of calculation must not result in the imposition on that institution of the cost of a benefit greater than the full benefit provided for by the legislation which it administers. This provision shall not apply to benefits, the amount of which does not depend on the length of insurance;

(b) the procedure for taking account of overlapping periods is laid down in the implementing decision referred to in Article 91;

(c) where, under the legislation of a Member State, benefits are calculated on the basis of average earnings, an average contribution, an average increase or on the relation which existed, during the periods of insurance, between the claimant's gross earnings and the average gross earnings of all insured persons other than apprentices, the competent institution of that State shall determine such average or proportional figures solely on the basis of the periods of insurance completed under the legislation of the said State or of the gross earnings received by the person concerned during those periods only;

(d) where, under the legislation of a Member State, benefits are calculated on the basis of the amount of earnings, contributions or increases, the competent institution of that State shall determine the earnings, contributions or increases to be taken into account in respect of the periods of insurance or residence completed under the legislation of other Member States on the basis of the average of the earnings, contributions or increases recorded in respect of the periods of insurance completed under the legislation which it administers;

(e) where, under the legislation of a Member State, benefits are calculated on the basis of earnings or a fixed amount, the competent institution of that State shall consider the earnings or the fixed amount to be taken into account by it in respect of periods of insurance or residence completed under legislations of other Member States as being equal to the earnings or fixed amount or, where appropriate, to the average of the earnings or fixed amounts corresponding to the periods of insurance completed under the legislation which it administers;

(f) where, under the legislation of a Member State, benefits are calculated for certain periods on the basis of the amount of earnings and for other periods on the basis of earnings or a fixed amount, the competent institution of that State shall, in respect of periods of insurance or residence completed under the legislations of other Member States, take into account the earnings or amounts determined in accordance with the provisions of subparagraphs (d) or (e) or the average of the said earnings or amounts, as the case may be; where, for all the periods completed under the legislation administered by that institution, benefits are calculated on the basis of earnings or fixed amount, it shall consider that the earnings to be taken into account by it in respect of the periods of insurance or residence completed under the legislations of other Member States as being equal to the credited earnings corresponding to such earnings or fixed amount;

(g) where, under the legislation of a Member State, benefits are calculated on an average contributions basis, the competent institution shall determine that average basis by reference only to those periods of insurance completed under the legislation of the said State.

2. The provisions of the legislation of a Member State concerning the revalorisation of the factors taken into account for the calculation of benefits shall apply, as appropriate, to the factors to be taken into account by the competent institution of that State, in accordance with paragraph 1, in respect of the periods of insurance or residence completed under the legislation of other Member States.

3. If, under the legislation of a Member State, the amount of benefits is determined taking into account the existence of members of the family other than children, the competent institution of that State shall also take into consideration those members of the family of the person concerned who are residing in the territory of another Member State as if they were residing in the territory of the competent State.

Article 53

Periods of insurance or of residence of less than one year

1. Notwithstanding Article 48(2), the institution of a Member State shall not be required to award benefits in respect of periods completed under the legislation it administers and which are to be taken into account when the risk materialises if:

-the duration of the said periods does not amount to one year,

and

-taking only these periods into consideration, no right to benefit is acquired by virtue of the provisions of that legislation.

2. The competent institution of each of the other Member States concerned shall take into account the periods referred to in paragraph 1, for the purposes of applying Article 47(2), excepting subparagraph (b).

3. If the effect of applying paragraph 1 would be to relieve all the institutions of the Member States concerned of their obligations, benefits shall be awarded exclusively under the legislation of the last of those States whose conditions are satisfied, as if all the periods of insurance and residence completed and taken into account in accordance with Article 47(1) to (4) had been completed under the legislation of that State.

Article 54

Calculation of benefits where the person concerned does not simultaneously satisfy the conditions laid down by all the legislations under which periods of insurance or of residence have been completed or when he has expressly requested postponement of the award of old-age benefits

1. If, at a given time, the person concerned does not satisfy the conditions laid down for the provision of benefits by all the legislations of the Member States to which he has been subject, taking into account - where appropriate - Article 47 and/or Article 42(3), but satisfies the conditions or one or more of them only, the following provisions shall apply:

(a) each of the competent institutions administering a legislation whose conditions are satisfied shall calculate the amount of the benefit due, in accordance with Article 48;

(b) however:

(i) if the person concerned satisfies the conditions of at least two legislations without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, such periods shall not be taken into account for the purposes of Article 48(2) unless taking account of the said periods makes it possible to determine a higher amount of benefit;

(ii) if the person concerned satisfies the conditions of one legislation only without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, the amount of the benefit due shall, in accordance with Article 48(1)(a)(i), be calculated only in accordance with the provisions of the legislation whose conditions are satisfied, taking account of the periods completed under that legislation only, unless taking account of the periods completed under the legislations whose conditions are not satisfied makes it possible, in accordance with Article 48(1)(a)(ii), to determine a higher amount of benefit.

The provisions of this paragraph shall apply by analogy where the person concerned has expressly requested postponement of the award of old-age benefits, in accordance with the second sentence of Article 46(2).

2. The benefit or benefits awarded under one or more of the legislations in question, in the case referred to in paragraph 1, shall be recalculated automatically in accordance with Article 48, as and when the conditions required by one or more of the other legislations to which the person concerned has been subject are satisfied, taking into account, where appropriate, Article 47 and taking into account once again, where appropriate, paragraph 1. This paragraph shall apply by analogy where a person requests the award of old-age benefits acquired under the legislation of one or more Member States which had until than been postponed in accordance with the second se