Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001 amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71 (Text with EEA relevance)
Date: 2001-06-05
Institutions: Council of the European Union, European Parliament
Subjects: exchange rate, family benefit, self-employment, social security, wage earner, worker (EU)

10.7.2001

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Official Journal of the European Communities

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I

(Acts whose publication is obligatory)

REGULATION (EC) No 1386/2001 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 5 June 2001

amending Council Regulations (EEC) No 1408/71 on the application of social security schemes to
employed persons, to self-employed persons and to members of their families moving within the
Community and (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC)
No 1408/71

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

from the Commission (1),
Having regard to the proposal
presented after consulting the Administrative Commission on
Social Security for Migrant Workers,

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

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

Whereas:

(1)

(2)

It is appropriate to make certain amendments to Council
Regulations (EEC) No 1408/71 (4) and (EEC) No 574/
72 (5). These amendments are linked to changes which
Member States have made to their social security legisla-
tion.

Following the notification by the French Government to
the President of the Council of a declaration making
Regulation (EEC) No 1408/71 applicable to the two
French supplementary pension schemes ARRCO and
AGIRC, it seems appropriate to facilitate the application
of that Regulation to the schemes by adding new points
to Annex IV Part C and Annex VI thereto, chiefly to take
account of the supplementary nature of these schemes
by comparison with the basic regimes, and of the fact
that the benefits they grant are calculated on the basis of
the number of pension points acquired, independently
of the periods completed.

(1) OJ C 274 E, 26.9.2000, p. 113.
(2) OJ C 367, 20.12.2000, p. 18.
(3) Opinion of the European Parliament of 15 February 2001 (not yet
published in the Official Journal), and Decision of the Council of 14
May 2001.

(4) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by Regulation

(EC) No 1399/1999 (OJ L 164, 30.6.1999, p. 1).

(5) OJ L 74, 27.3.1972, p. 1. Regulation as last amended by Regulation

(EC) No 1399/1999.

(3)

(4)

(5)

(6)

(7)

(8)

It
the
is appropriate to clarify that benefits under
Austrian statutory special assistance scheme are to be
granted according to the provisions of Title III Chapter 3
of Regulation (EEC) 1408/71.

To take account of the judgment of the Court of Justice
of the European Communities of 11 June 1998 in Case
C-275/96 Kuusijärvi v. Riksförsäkringsverket (6), section ‘N.
SWEDEN’ of Annex VI should be amended.

It is appropriate to amend Article 34(5) of Regulation
(EEC) No 574/72 in order to separate it from Article
34(4) and hence no longer to refer to the reimbursement
procedure subject to a ceiling where the expenses have
been incurred during a stay in a Member State which
does not provide for rates of reimbursement.

It is necessary to amend Article 93(1) of Regulation
(EEC) No 574/72 to take account of Council Regulation
(EC) No 307/1999 (7), which extends Regulation (EEC)
No 1408/71 to cover students.

It is appropriate to amend Article 107 of Regulation
(EEC) No 574/72 following the introduction of the euro
on 1 January 1999.

In order to attain the objective of freedom of movement
for workers, it is necessary and appropriate to amend
the rules relating to the coordination of national social
security schemes through a Community legal instrument
that is binding and directly applicable in each Member
State.

(9) With the exception of Article 42, the Treaty does not
provide, for the adoption of this Regulation, for powers
other than those under Article 308,

(6) [1998] ECR I-3419.
(7) OJ L 38, 12.2.1999, p. 1.

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HAVE ADOPTED THIS REGULATION:

3. Article 107 shall be amended as follows:

Article 1

Annexes IIa, IV and VI to Regulation (EEC) No 1408/71 shall
be amended in accordance with the Annex to this Regulation.

Article 2

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

1. Article 34(5) shall be replaced by the following:

‘5.
If the legislation of the State of stay does not provide
for rates of reimbursement, the competent institution may
effect the reimbursement in accordance with the rates it
administers, without the agreement of the person concerned
being necessary. In no case shall the amount of reimburse-
ment exceed the amount of the expenses actually incurred.’

(a) Paragraph 1 shall be replaced by the following:

‘1.

For the purposes of the following provisions:

(a) Regulation: Article 12(2), (3) and (4), Article 14d(1),
Article 19(1)(b), last sentence, Article 22(1)(ii), last
sentence, Article 25(1)(b), penultimate sentence,
Article 41(1)(c) and (d), Article 46(4), Article 46a(3),
Article 50, Article 52(b),
sentence, Article
55(1)(ii), last sentence, Article 70(1), first subpara-
graph, Article 71(1)(a)(ii) and (b)(ii), penultimate
sentence;

last

(b) implementing Regulation: Article 34(1), (4) and (5),

the rate for the conversion into a currency of amounts
denominated in another currency shall be the rate calcu-
lated by the Commission and based on the monthly
average, during the reference period specified in para-
graph 2, of reference rates of exchange of currencies
published by the European Central Bank.’

2. Article 93(1) shall be replaced by the following:

(b) Paragraph 3 shall be deleted.

to Article 19(1) and (2) of

The actual amount of benefits in kind provided
‘1.
pursuant
the Regulation to
employed and self-employed persons and to members of
their families residing in the territory of the same Member
State, and benefits in kind provided pursuant to Articles
21(2), 22, 22a, 22b, 25(1), (3) and (4), 26, 31, 34a or 34b
of the Regulation, shall be refunded by the competent insti-
tution to the institution which provided the said benefits as
shown in the accounts of that institution.’

Article 3

This Regulation shall enter into force on the first day of the
second month following that of its publication in the Official
Journal of the European Communities.

Article 1, as far as the changes to Section ‘E. FRANCE’ of Annex
IV, Part C, and of Annex VI to Regulation (EEC) No 1408/71
are concerned, shall apply as from 1 January 2000.

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Luxembourg, 5 June 2001.

For the European Parliament

The President

N. FONTAINE

For the Council

The President

L. ENGQVIST

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ANNEX

Annexes IIa, IV and VI to Regulation (EEC) No 1408/71 shall be amended as follows:

1. In Annex IIa,

in section ‘O. UNITED KINGDOM’, paragraphs (c) and (g) shall be replaced by the following:

‘(c) Working Families' Tax Credit (Social Security Contributions and Benefits Act 1992, section 123(1)(b), Social
Security Contributions and Benefits (Northern Ireland) Act 1992, section 122(1)(b), and Tax Credits Act 1999).’

‘(g) Disabled Person's Tax Credit (Social Security Contributions and Benefits Act 1992, section 123(1)(c), Social
Security Contributions and Benefits (Northern Ireland) Act 1992, section 122(1)(c), and Tax Credits Act 1999).’

2. In Annex IV, Part C, Section ‘E. FRANCE’, the word ‘None’ shall be replaced by the following:

‘All applications for pension benefits or survivor's benefits under supplementary pension schemes for employees, with
the exception of applications for old-age pensions or surviving partner's pensions under the supplementary pension
scheme for flying personnel employed in civil aviation.’

3. Annex VI is hereby amended as follows:

(a) Section ‘E. FRANCE’ shall be amended as follows:

(i) In point 3, the following subparagraph shall be added:

‘The preceding conditions shall also hold good when applying to other Member States' nationals the
provisions which allow a French employed worker pursuing his activity outside France voluntarily to join a
French supplementary pension scheme for employed workers either directly or via his employer.’

(ii) Point 5 shall be replaced by the following:

‘5. For the calculation of the theoretical amount referred to in Article 46(2)(a) of the Regulation, in basic or
supplementary schemes in which old-age pensions are calculated on the basis of retirement points, the
competent institution shall take into account, in respect of each of the years of insurance completed under
the legislation of any other Member State, the number of retirement points arrived at by dividing the
number of retirement points acquired under the legislation it applies by the number of years corre-
sponding to these points.’
(iii) The following point shall be added:

‘9. The French legislation applicable to an employed worker or a former employed worker for the purposes of
applying Chapter 3 of Title III of the Regulation is deemed to apply both to the basic old-age insurance
scheme(s) and to the supplementary pension scheme(s) to which the person concerned has been subject.’

(b) In Section ‘K. AUSTRIA’, the following point shall be added:

‘7. Special assistance under the Special Assistance Act (“Sonderunterstützungsgesetz”) of 30 November 1973 shall

be considered as an old-age pension for the purposes of applying the Regulation.’

(c) In Section ‘N. SWEDEN’, point 1 shall be replaced by the following:

‘1. For the application of Article 72 of the Regulation, a person's entitlement to parental benefit shall be
determined by regarding insurance periods completed in another Member State as being based on the same
average income as the Swedish insurance periods with which they are aggregated.’