Resolution of the Administrative Commission of 29 June 2000 concerning criteria for the inclusion of benefits as "special non-contributory benefits" in Annex II, Section III or in Annex IIa of Regulation (EEC) No 1408/71
Date: 2000-06-29
Institutions: Administrative Commission on Social Security for Migrant Workers, European Commission
Subjects: mentally disabled person, physically disabled person, self-employment, social assistance, social security

10.2.2001

EN

Official Journal of the European Communities

C 44/13

RESOLUTION

of the Administrative Commission of 29 June 2000 concerning criteria for the inclusion of
benefits as (cid:145)special non-contributory benefits(cid:146) in Annex II, Section III or in Annex IIa of Regu-
lation (EEC) No 1408/71

(2001/C 44/06)

THE ADMINISTRATIVE
EUROPEAN
COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,

COMMISSION OF

THE

HAS REACHED AGREEMENT ON THE FOLLOWING CRITERIA:

On the basis of Article 81(g) of 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,
pursuant to which it may submit proposals to the Commission
for working out subsequent regulations and for the revision of
the existing and subsequent regulations,

Whereas,
in its judgments of 4 November 1997 in Case
C-20/96, Snares, and 11 June 1998 in Case C-297/96, Partridge,
the European Court of Justice implicitly held that it is for the
Council to examine benefits in respect of the prerequisites for
inclusion as (cid:145)special non-contributory benefits(cid:146) in Annex IIa to
Regulation (EEC) No 1408/71; whereas, therefore, responsibility
lies mainly with the Council; whereas
the Administrative
Commission also has a certain responsibility for preparing
the necessary legal instruments;

Whereas in the past it was particularly difficult to accom-
modate the wishes of certain Member States for the inclusion
of certain benefits in this annex because no generally accepted
criteria
(cid:145)special
non-contributory benefit(cid:146) have been adopted;

classification of

a benefit

the

for

as

Whereas
repeatedly stressed the need for such objective criteria;

the new applicant countries

in particular have

Whereas commonly agreed objective criteria for the inclusion
of certain benefits in this annex do not call for a review of the
benefits which already, by common accord, have been included
in this annex;

Convinced that an agreement on criteria for the inclusion of a
benefit as a (cid:145)special non-contributory benefit(cid:146) in Annex IIa to
Regulation (EEC) No 1408/71 would considerably speed up the
the Administrative
associated preparatory discussions
Commission on social security for migrant workers, and also
contribute to legal certainty, whereby in particular there is a
need to distinguish regional special non-contributory benefits
that are excluded pursuant
to Article 4(2)(b) of Regulation
(EEC) No 1408/71,

at

1. Regulation (EEC) No 1408/71 sets out the criteria to be
met
(cid:145)special
to be
non-contributory benefit(cid:146). These criteria are examined
below on a systematic basis.

a benefit

classified

for

as

a

2. Article 4(2)(a) of

the Regulation applies

to special
non-contributory benefits, which are provided under legis-
lation or schemes other than those referred to in Article
4(1) and are not benefits excluded pursuant to Article 4(4),
these benefits are intended to provide
in so far as
supplementary, substitute or ancillary cover against
the
risks referred to in Article 4(1) or are intended solely as
specific protection for
the disabled. Although Article
4(2)(a) applies to both special non-contributory benefits
in kind and in cash, Article 19(a) only concerns cash
benefits.

3. Because of the close material links, the criteria set out in
Article 4(2)(a) also cover those special non-contributory
benefits that are confined to part of a territory of a
Member State, and which therefore, pursuant to Article
4(2)(b) can be fully excluded from matters covered by
the Regulation, by entering them in section III of Annex
these benefits there is an additional
II. However,
for
they must not apply in a uniform
criterion in that
the Member State
manner
regulating these
concerned, and that responsibility for
benefits lies exclusively with the local authorities.
is
not enough merely to decentralise the administration of
these benefits
special
non-contributory benefits within the meaning of Article
4(2)(b) of Regulation (EEC) No 1408/71.

them to be considered as

to the entire territory of

for

It

THE MEANING OF NON-CONTRIBUTORY

4. The following criteria are particularly relevant in deter-
mining whether a benefit is (cid:145)non-contributory(cid:146) or not:

(a) The funding of the benefit should be considered as a
decisive factor and the scheme, which could be a
special or general
exclusively
financed by taxes designed to meet general public
charges or by taxes whose purpose is to finance
social security.

should be

scheme,

C 44/14

EN

Official Journal of the European Communities

10.2.2001

(b) The fact

that a benefit

funded exclusively by
employers’ contributions does not mean that
the
benefit is non-contributory from the point of view of
the protected worker.

is

THE MEANING OF (cid:145)SPECIAL(cid:146)

5. The following cumulative criteria are particularly relevant

in determining whether a benefit is (cid:145)special(cid:146):

(a) The benefit has the characteristics of a social security
benefit of a (cid:145)mixed type(cid:146), in that it gives the beneficiary
a legally defined right
to benefit which is a char-
acteristic of a social security benefit but also contains
the particular
features of social assistance,
financial and/or other needs of
the individual are
taken into account.

in that

(b) The characteristics of the category of benefit are closely
linked to a particular social and economic context in
the Member State where the beneficiary resides.

(c) In the case of

insufficient economic resources,

the

benefit is designed to provide assistance.

(d) The award could be subject to means testing, although
due to its general nature it is not always necessary to
examine the specific circumstances of each individual
case. Means testing is an important
though not an
essential criterion, which may, in particular, take into
account income from gainful activity or other social
security benefits.

THE MEANING OF

SUPPLEMENTARY,
ANCILLARY COVER

SUBSTITUTE, AND

6. Substitute benefits are benefits provided instead of

the
(cid:145)normal(cid:146) benefits granted in respect of the risks referred
to in Article 4(1) of Regulation (EEC) No 1408/71. Thus
in the case of these benefits the risk covered must be
identical. This category concerns in particular benefits
for example,
that are granted to persons who do not,

satisfy the insurance conditions for entitlement
(cid:145)normal(cid:146) benefits.

to the

7. Supplementary/ancillary

are,

firstly,

benefits
benefits
granted in conjunction with one of the (cid:145)normal(cid:146) benefits
referred to in Article 4(1) that cover the same risks as
these benefits.
(Hence the basic prerequisite is that the
person must also be receiving such a (cid:145)normal(cid:146) benefit,
such as a benefit that (cid:145)tops up(cid:146) the recipient’s income to
that of a minimum pension granted to residents who
qualify for the (cid:145)normal(cid:146) old age pension granted to the
working population, when this pension is lower than the
statutory minimum.) This category also includes benefits
granted together with the (cid:145)normal(cid:146) benefits covered by
Article 4(1), but which cover a different risk than these
benefits (hence the basic prerequisite is that the person
must also be receiving such a (cid:145)normal(cid:146) benefit (cid:151) e.g.
pension supplements because of mental or physical
disability).

BENEFITS SOLELY AS SPECIFIC PROTECTION FOR THE DISABLED

8. These may be benefits that are paid to, or in respect of, a
disabled person for the general purpose of helping to meet
the extra outlays associated with the disability, for example
help towards the costs arising from the care and mobility
needs of a disabled person, or benefits
intended to
guarantee a minimum income.

9. The may include benefits intended to assist a disabled
person into work, to enable them to continue in work,
or to provide help with the additional needs connected
with the employment.

10. They may also include benefits awarded to a person in
relation to that person’s role in the provision of care to
a disabled person falling within paragraphs 8 or 9.

The Chairman of the Administrative Commission

Pinto PIZARRO