WRITTEN QUESTION E-2779/02

by Luigi Cocilovo (PPE-DE) to the Commission

(3 October 2002)

Subject: Application of Regulations (EEC) No 1408/71 and No 574/72 in the context of the Agreement between the European Community and the Swiss Confederation

The Swiss Federal Law on insurance for old age, invalidity and survivors makes provision for paying the children of pensioners an additional annuity or supplementary pension, rather than actual family allowances.

Since 1 June 2002 the application of Regulations (EEC) No 1408/71(1) and No 574/72(2) was extended to Switzerland by virtue of the Agreement of 21 June 1999 between the European Community and the Swiss Confederation. Can the Commission say how the arrangements for the simultaneous receipt of the Swiss pension benefiting children and the family allowances provided for them under the legislation of other Member States have been or will be regulated?

Do the provisions of Chapter 3 (pensions) of Regulation No 1408/71 or Chapter 8 (benefits for dependent children) apply? For example, how would the case of a pensioner resident in Italy, who completed the last period of insurance in Switzerland and is entitled to a pension from Switzerland for his children and family allowances from Italy be dealt with? How are the judgments of the Court of Justice applied in determining any differential additional amount?

It is unlikely that this problem can be settled by reference to Council Regulation (EC) No 1399/1999(3) of 29 April 1999, since it only deals with the rights of orphans.

(1) OJ L 149, 5.7.1971, p. 2.

(2) OJ L 74, 27.3.1972, p. 1.

(3) OJ L 164, 30.6.1999, p. 1.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(30 October 2002)

The Commission wishes to inform the Honourable Member that the Community rules co-ordinating the national social security systems, and in particular Regulations (EEC) No 1408/71(1) and (EEC) No 574/72(2), provide for detailed rules concerning the payment of benefits for dependent children of pensioners in its Chapter 8. Since the entry into force of the Agreement on Free Movement of Persons between the Community and Switzerland on 1 June 2002, the following rules therefore also apply with regard to Switzerland:

Article 77 of Regulation (EEC) No 1408/71 determines one Member State which is competent for paying the benefits for dependent children of pensioners, distinguishing whether the person receives a pension under the legislation of one or of more Member States: if a pensioner receives a pension from one Member State only, this Member State is responsible for payment of benefits, irrespective of the place where the pensioner or the children are residing. If, however, a person draws pensions from more than one Member State and he resides in one of them, it is the state of residence that is competent for paying the benefits for dependent children.

Where a pensioner receives pensions from more than one Member State, account must, however, be taken of the jurisprudence of the Court of Justice regarding the payment of a differential amount(3): if the amount of the benefits for dependent children paid by the Member State of residence to a pensioner is lower than the amount of benefits which would be provided by another Member State which also pays a pension to the person, then the second Member State must pay a differential amount equal to the difference between the amount due under its legislation and the amount due under the legislation of the Member State of residence. However, this principle only applies if the pension paid in the first Member State is based exclusively on periods of insurance completed in this State(4).

According to the Commission's information the Swiss child's pension to which the Honourable Member refers is paid to persons receiving a Swiss pension for their dependent children. As a supplementary pension derived of the main pension it therefore seems to qualify as an increase or a supplement to a pension according to Article 77 of Regulation (EEC) No 1408/71.

In conclusion, a pensioner with an Italian and a Swiss pension who resides in Italy would be entitled to receive Italian family allowances for his dependent children pursuant to Article 77. If his entitlement to a Swiss pension was opened based on Swiss insurance periods alone, without taking into account insurance periods completed in other Member States, and if the amount of the Swiss child's pension in regard of his dependent children is higher than the Italian family allowance, then he is, nevertheless, entitled to receive the complementary supplement from Switzerland equal to the difference between the two amounts.

(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community, Regulation updated by Council Regulation (EC) No 118/97 of 2 December 1996, OJ L 28, 30.1.1997.

(2) Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community.

(3) Rulings of 11.6.1991, case C-251/89 Athanasopoulos, ECR [1991] I-2797; ruling of 27.2.1997, case C-59/95 Bastos Moriana, ECR [1997] I-1071; ruling of 7.5.1998, case C-118/96 Gomez Rodriguez, ECR [1998] I-2461.

(4) Ruling of 27.2.1997, case C-59/95 Bastos Moriana, ECR [1997] I-1071.