Common Position (EC) No 18/2004 of 26 January 2004 adopted by the Council, acting in accordance with the procedure referred to in Article 251 of the Treaty establishing the European Community, with a view to adopting a regulation of the European Parliament and of the Council on the coordination of social security systems( (Text with relevance for the EEA and for Switzerland))
Date: 2004-01-26
Institutions: Council of the European Union
Subjects: EU Member State, social-security harmonisation

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COMMON POSITION (EC) No 18/2004

adopted by the Council on 26 January 2004

with a view to adopting Regulation (EC) No . . ./2004 of the European Parliament and of the
Council of . . . on the coordination of social security systems

(2004/C 79 E/02)

(Text with relevance for the EEA and for Switzerland)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

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

Having regard to the proposal from the Commission presented
after consultation with the social partners and the Adminis-
trative Commission on Social Security for Migrant Workers (1),

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

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

Whereas:

(1) The rules for coordination of national social security
systems fall within the framework of free movement of
persons and should contribute towards improving their
standard of living and conditions of employment.

(2) The Treaty does not provide powers other than those of
Article 308 to take appropriate measures within the field
of
than employed
persons.

security for persons other

social

(3) 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 (4) has been

(1) OJ C 38, 12.2.1999, p. 10.
(2) OJ C 75, 15.3.2000, p. 29.
(3) Opinion of the European Parliament of 3 September 2003 (not yet
Journal). Council Common Position of
published in the Official
26 January 2004 and Position of the European Parliament of . . .
(not yet published in the Official Journal).

(4) OJ L 149, 5.7.1971, p. 2. Regulation as last amended by Regulation
(EC) No 1386/2001 of the European Parliament and of the Council
(OJ L 187, 10.7.2001, p. 1).

amended and updated on numerous occasions in order to
take into account not only developments at Community
level, including judgments of the Court of Justice, but also
changes in legislation at national level. Such factors have
played their part in making the Community coordination
rules complex and lengthy. Replacing, while modernising
and simplifying, these rules is therefore essential to achieve
the aim of the free movement of persons.

(4)

(5)

is necessary to respect

It
the special characteristics of
national social security legislation and to draw up only a
system of coordination.

It is necessary, within the framework of such coordination,
to guarantee within the Community equality of treatment
under the different national
legislation for the persons
concerned.

(6) The close link between social security legislation and those
contractual provisions which complement or replace such
legislation and which have been the subject of a decision
by the public authorities rendering them compulsory or
extending their scope may call for similar protection with
regard to the application of
those provisions to that
afforded by this Regulation. As a first step, the experience
of Member States who have notified such schemes might
be evaluated.

(7) Due to the large differences existing between national
legislation in terms of the persons covered, it is preferable
to lay down the principle that this Regulation applies to
nationals of a Member State, stateless persons and refugees
resident in the territory of a Member State who are or
have been subject
to the social security legislation of
one or more Member States, as well as to the members
of their families and to their survivors.

(8) The general principle of equal treatment is of particular
importance for workers who do not reside in the Member
State of their employment, including frontier workers.

(9) The Court of Justice has on several occasions given an
opinion on the possibility of equal treatment of benefits,
income and facts;
this principle should be adopted
explicitly and developed, while observing the substance
and spirit of legal rulings.

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(10) However, the principle of treating certain facts or events
occurring in the territory of another Member State as if
they had taken place in the territory of the Member State
whose legislation is applicable should not interfere with
insurance,
the principle of
employment,
residence completed
under
the legislation of another Member State with
those completed under the legislation of the competent
Member State. Periods completed under the legislation of
another Member State should therefore be taken into
account solely by applying the principle of aggregation
of periods.

aggregating periods of

self-employment or

(11) The assimilation of facts or events occurring in a Member
State can in no way render another Member State
competent or its legislation applicable.

(12) In the light of proportionality, care should be taken that
the principle of assimilation of facts or events does not
lead to objectively unjustified results or to the overlapping
of benefits of the same kind for the same period.

(13) The coordination rules must guarantee that persons
moving within the Community and their dependants and
survivors retain the rights and the advantages acquired and
in the course of being acquired.

(14) These objectives must be attained in particular by aggre-
gating all the periods taken into account under the various
national
the purpose of acquiring and
to benefits and of calculating the
retaining the right
amount of benefits, and by providing benefits for the
various categories of persons covered by this Regulation.

legislation for

(15) It

is necessary to subject persons moving within the
Community to the social security scheme of only one
single Member State in order to avoid overlapping of
national
complications
which could result therefrom.

legislation applicable and the

(16) Within the Community there is in principle no justifi-
cation for making social security rights dependent on
the place of residence of the person concerned; never-
theless,
in particular as regards special
benefits linked to the economic and social context of the
person involved, the place of residence could be taken into
account.

in specific cases,

(18) In specific situations which justify other criteria of appli-
cability, it is necessary to derogate from that general rule.

these benefits are different

(19) In some cases, maternity and equivalent paternity benefits
may be enjoyed by the mother or the father and since, for
the latter,
from parental
benefits and can be assimilated to maternity benefits
they are provided during the first
strictu sensu in that
months of a new-born child's life, it is appropriate that
maternity and equivalent paternity benefits be regulated
jointly.

(20) In the field of sickness, maternity and equivalent paternity
benefits, insured persons, as well as the members of their
families, living or staying in a Member State other than the
competent Member State, should be afforded protection.

(21) Provisions on sickness, maternity and equivalent paternity
benefits were drawn up in the light of Court of Justice case
law.
been
improved, taking into account the relevant decisions of
the Court of Justice.

Provisions on prior

authorisation have

(22) The specific position of pension claimants and pensioners
and the members of their families makes it necessary to
have provisions governing sickness insurance adapted to
this situation.

it

(23) In view of the differences between the various national
is appropriate that Member States make
systems,
provision, where possible,
for
for medical
family members of frontier workers in the Member State
where the latter pursue their activity.

treatment

(24) It is necessary to establish specific provisions regulating
the non-overlapping of sickness benefits in kind and
sickness benefits in cash which are of the same nature
as those which were the subject of Court of
Justice
judgments
and C-160/96,
Molenaar, provided that those benefits cover the same risk.

in Case C-215/99,

Jauch,

(25) In respect of benefits for accidents at work and occupa-
tional diseases, rules should be laid down, for the purpose
of affording protection, covering the situation of persons
residing or staying in a Member State other than the
competent Member State.

(17) With a view to guaranteeing the equality of treatment of
all persons occupied in the territory of a Member State as
effectively as possible, it is appropriate to determine as the
legislation applicable, as a general rule, that of the Member
State in which the person concerned pursues his activity
as an employed or self-employed person.

(26) For invalidity benefits, a system of coordination should be
drawn up which respects the specific characteristics of
national
in particular as regards recognition
of invalidity and aggravation thereof.

legislation,

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(27) It is necessary to devise a system for the award of old-age
benefits
the person
and survivors' benefits where
concerned has been subject to the legislation of one or
more Member States.

C-312/94, Hoever and Zachow and in Case C-275/96,
Kuusijärvi, it is necessary to regulate all such benefits.

(28) There is a need to determine the amount of a pension
calculated in accordance with the method used for aggre-
calculation and guaranteed by
gation and pro-rata
Community law where the application of national legis-
lation, including rules concerning reduction, suspension or
withdrawal,
is less favourable than the aforementioned
method.

(29) To protect migrant workers and their survivors against
excessively stringent application of
the national
rules
is
concerning reduction, suspension or withdrawal,
it
necessary to include provisions strictly governing the
application of such rules.

(30) As has constantly been reaffirmed by the Court of Justice,
to enact rules
is not deemed competent
the Council
imposing a restriction on the overlapping of
two or
more pensions acquired in different Member States by a
the amount of a pension acquired solely
reduction of
under national legislation.

(31) According to the Court of Justice,

it is for the national
legislator to enact such rules, bearing in mind that it is for
the Community legislator to fix the limits within which
the national provisions concerning reduction, suspension
or withdrawal are to be applied.

(32) In order to foster mobility of workers,

it is particularly
in
appropriate to facilitate the search for employment
the various Member States;
it is therefore necessary to
ensure closer and more effective coordination between
the
the
insurance
employment services of all the Member States.

unemployment

schemes

and

(33) It is necessary to include statutory pre-retirement schemes
thus guaranteeing
within the scope of this Regulation,
treatment and the possibility of exporting
both equal
family
pre-retirement benefits as well as the award of
in
and health-care benefits to the person concerned,
accordance with the provisions of
this Regulation;
however, the rule on the aggregation of periods should
not be included, as only a very limited number of
Member States have statutory pre-retirement schemes.

(35) In order to avoid unwarranted overlapping of benefits,
there is a need to lay down rules of priority in the case
of overlapping of rights to family benefits under the legis-
lation of the competent Member State and under the legis-
lation of the Member State of residence of the members of
the family.

(36) Advances of maintenance allowances are recoverable
advances intended to compensate for a parent's failure to
fulfil his legal obligation of maintenance to his own child,
which is an obligation derived from family law. Therefore,
these advances should not be considered as a direct benefit
from collective support in favour of families. Given these
particularities, the coordinating rules should not be applied
to such maintenance allowances.

(37) As the Court of Justice has repeatedly stated, provisions
which derogate from the principle of the exportability of
social security benefits must be interpreted strictly. This
means that they can apply only to benefits which satisfy
the specified conditions. It follows that Chapter 9 of Title
III of this Regulation can apply only to benefits which are
both special and non-contributory and listed in Annex X
to this Regulation.

(38) It is necessary to establish an Administrative Commission
consisting of a government
representative from each
Member State, charged in particular with dealing with all
interpretation
administrative questions or questions of
arising from the provisions of this Regulation, and with
promoting further
cooperation between the Member
States.

(39) The development and use of data-processing services for
the exchange of information has been found to require the
creation of a Technical Commission, under the aegis of the
Administrative Commission, with specific responsibilities
in the field of data-processing.

(40) The use of data-processing services for exchanging data
between institutions requires provisions guaranteeing that
the documents exchanged or issued by electronic means
are accepted as equivalent
to paper documents. Such
exchanges are to be carried out in accordance with the
Community provisions on the protection of natural
persons with regard
free
movement of personal data.

to the processing

and

(34) Since family benefits have a very broad scope, affording
protection in situations which could be described as classic
as well as in others which are specific in nature, with the
latter type of benefit having been the subject of the Court
in Joined Cases C-245/94 and
of

Justice judgments

(41) It

is necessary to lay down special provisions which
correspond to the special characteristics of national legis-
lation in order to facilitate the application of the rules of
coordination.

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(42) In line with the principle of proportionality, in accordance
with the premise for the extension of this Regulation to all
European Union citizens and in order to find a solution
takes account of any constraints which may be
that
systems
connected with the special characteristics of
based on residence, a special derogation by means of an
Annex XI — ‘DENMARK’ entry, limited to social pension
entitlement exclusively in respect of the new category of
non-active persons, to whom this Regulation has been
extended, was deemed appropriate due to the specific
features of the Danish system and in the light of the
fact that those pensions are exportable after a ten-year
period of residence under the Danish legislation in force
(Pension Act).

(43) In line with the principle of equality of treatment, a special
derogation by means of an Annex XI — ‘FINLAND’ entry,
limited to residence-based national pensions,
is deemed
appropriate due to the specific characteristics of Finnish
social security legislation,
the objective of which is to
ensure that the amount of the national pension cannot
be less than the amount of the national pension calculated
as if all insurance periods completed in any Member State
were completed in Finland.

(44) It is necessary to introduce a new Regulation to repeal
Council Regulation (EEC) No 1408/71. However,
is
necessary that Regulation (EEC) No 1408/71 remain in
force and continue to have legal effect for the purposes
of certain Community acts and agreements to which the
Community is a party, in order to secure legal certainty.

it

(45) Since the objective of the proposed action, namely the
coordination measures to guarantee that the right to free
movement of persons can be exercised effectively, cannot
be sufficiently achieved by the Member States and can
that
therefore, by reason of
the scale and effects of
the
action, be better achieved at Community level,
Community may adopt measures in accordance with the
principle of subsidiarity as set out in Article 5 of the
Treaty. In accordance with the principle of proportionality
as set out in that article, this Regulation does not go
to achieve that
beyond what
objective,

is necessary,

in order

HAVE ADOPTED THIS REGULATION:

TITLE I

GENERAL PROVISIONS

Article 1

Definitions

For the purposes of this Regulation:

(a)

(b)

(c)

(d)

(e)

‘activity as an employed person’ means any activity or
equivalent situation treated as such for the purposes of
the social security legislation of
the Member State in
which such activity or equivalent situation exists;

‘activity as a self-employed person’ means any activity or
equivalent situation treated as such for the purposes of the
social security legislation of the Member State in which
such activity or equivalent situation exists;

‘insured person’, in relation to the social security branches
covered by Title III, Chapters 1 and 3, means any person
satisfying the conditions required under the legislation of
the Member State competent under Title II to have the
right to benefits, taking into account the provisions of
this Regulation;

‘civil servant’ means a person considered to be such or
treated as such by the Member State to which the adminis-
tration employing him is subject;

‘special scheme for civil servants’ means any social security
scheme which is different from the general social security
scheme applicable to employed persons in the Member

State concerned and to which all, or certain categories
of, civil servants are directly subject;

(f)

(g)

(h)

‘frontier worker’ means any person pursuing an activity as
an employed or self-employed person in a Member State
and who resides in another Member State to which he
returns as a rule daily or at least once a week;

‘refugee’ shall have the meaning assigned to it in Article 1
of
the Convention relating to the Status of Refugees,
signed in Geneva on 28 July 1951;

‘stateless person’ shall have the meaning assigned to it in
Article 1 of
the Convention relating to the Status of
Stateless Persons, signed in New York on 28 September
1954;

(i)

‘member of the family’ means

1. (i) any person defined or recognised as a member of
the
the family or designated as a member of
household by the legislation under which benefits
are provided;

(ii) with regard to benefits in kind pursuant to Title III,
Chapter 1 on sickness, maternity and equivalent
paternity benefits, any person defined or recognised
as a member of
the family or designated as a
member of the household by the legislation of the
Member State in which he resides.

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2. If the legislation of a Member State which is applicable
under subparagraph 1 does not make a distinction
between the members of
family and other
persons to whom it is applicable, the spouse, minor
children, and dependent children who have reached
the age of majority shall be considered members of
the family.

the

3. If, under

the legislation which is applicable under
subparagraphs 1 and 2, a person is only considered a
member of the family or member of the household if
he lives in the same household as the insured person or
pensioner, this condition shall be considered satisfied if
the person in question is mainly dependent on the
insured person or pensioner;

(j)

‘residence’ means the place where a person habitually
resides;

(k)

‘stay’ means temporary residence;

(l)

‘legislation’ means, in respect of each Member State, laws,
regulations and other statutory provisions and all other
implementing measures relating to the social security
branches covered by Article 3(1).

This term excludes contractual provisions other than those
which serve to implement an insurance obligation arising
from the laws and regulations referred to in the preceding
subparagraph or which have been the subject of a decision
by the public authorities which makes them obligatory or
extends their
the Member State
concerned makes a declaration to that effect, notified to
the Commission of
the European Communities. Such
declaration shall be published in the Official Journal of the
European Union;

scope, provided that

(m) ‘competent authority’ means, in respect of each Member
State, the Minister, Ministers or other equivalent authority
responsible for social security schemes throughout or in
any part of the Member State in question;

(n)

‘Administrative Commission’ means
referred to in Article 71;

the

commission

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

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

(iii) the institution designated by the competent authority

of the Member State concerned; or

(iv) in the case of a scheme relating to an employer's
set out
in
obligations in respect of
Article 3(1), either
the insurer
involved or, in default thereof, the body or authority
designated by the competent authority of the Member
State concerned;

the benefits
the employer or

(r)

‘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
to provide benefits in the place where the
competent
person concerned is staying, in accordance with the legis-
lation administered by that institution or, where no such
institution exists,
the
institution designated by
competent authority of the Member State concerned;

the

(s)

‘competent Member State’ means the Member State in
which the competent institution is situated;

(t)

(u)

‘period of
insurance’ means periods of contribution,
employment or self-employment as defined or recognised
as periods of insurance by the legislation under which they
were completed or considered as completed, and all
periods treated as such, where they are regarded by the
said legislation as equivalent to periods of insurance;

‘period of employment’ or ‘period of self-employment’
mean 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 or to periods of self-
employment;

(o)

‘Implementing Regulation’ means the Regulation referred
to in Article 89;

(v)

residence’ means periods

so defined or
‘period of
recognised by the legislation under which they were
completed or considered as completed;

(p)

‘institution’ means, in respect of each Member State, the
body or authority responsible for applying all or part of
the legislation;

(q)

‘competent institution’ means:

(w)

‘pension’ covers not only pensions but also lump-sum
benefits which can be
them and
payments in the form of reimbursement of contributions
and, subject
to the provisions of Title III, revaluation
increases or supplementary allowances;

substituted for

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(x)

(y)

(z)

‘pre-retirement benefit’ means: all cash benefits, other than
an unemployment benefit or an early old-age benefit,
provided from a specified age to workers who have
reduced, ceased or suspended their remunerative activities
until the age at which they qualify for an old-age pension
or an early retirement pension, the receipt of which is not
conditional upon the person concerned being available to
the employment services of the competent State;
‘early
old-age benefit’ means a benefit provided before the
normal pension entitlement age is reached and which
either continues to be provided once the said age is
reached or is replaced by another old-age benefit;

(g) death grants;

(h) unemployment benefits;

(i) pre-retirement benefits;

(j)

family benefits.

‘death grant’ means any one-off payment in the event of
death excluding the lump-sum benefits referred to in
subparagraph w);

2.
Unless otherwise provided for in Annex XI, this Regu-
lation shall apply to general and special social security schemes,
whether contributory or non-contributory, and to schemes
relating to the obligations of an employer or shipowner.

‘Family benefit’ means all benefits in kind or in cash
intended to meet family expenses, excluding advances of
maintenance payments and special childbirth and adoption
allowances mentioned in Annex I.

This Regulation shall

3.
to the
non-contributory cash benefits covered by Article 70.

also apply

special

Article 2

Persons covered

1.
This Regulation shall apply to nationals of a Member
State, stateless persons and refugees residing in a Member
State who are or have been subject to the legislation of one
or more Member States, as well as to the members of their
families and to their survivors.

2.
It shall also apply to the survivors of persons who have
been subject to the legislation of one or more Member States,
irrespective of the nationality of such persons, where their
survivors are nationals of a Member State or stateless persons
or refugees residing in one of the Member States.

Article 3

Matters covered

This Regulation shall apply to all legislation concerning

1.
the following branches of social security:

(a) sickness benefits;

(b) maternity and equivalent paternity benefits;

(c)

invalidity benefits;

(d) old-age benefits;

(e) survivors' benefits;

(f) benefits in respect of accidents at work and occupational

diseases;

4.
The provisions of Title III of this Regulation shall not,
however, affect the legislative provisions of any Member State
concerning a shipowner's obligations.

5.
This Regulation shall not apply to social and medical
assistance or to benefit schemes for victims of war or its conse-
quences.

Article 4

Equality of treatment

Unless otherwise provided for by this Regulation, persons to
whom this Regulation applies shall enjoy the same benefits and
be subject to the same obligations under the legislation of any
Member State as the nationals thereof.

Article 5

Equal treatment of benefits, income, facts or events

Unless otherwise provided for by this Regulation and in the
light of the special
implementing provisions laid down, the
following shall apply:

(a) where, under the legislation of

the competent Member
State the receipt of social security benefits and other
income has certain legal effects, the relevant provisions of
that legislation shall also apply to the receipt of equivalent
benefits acquired under the legislation of another Member
State or to income acquired in another Member State;

(b) where, under the legislation of

the competent Member
State legal effects are attributed to the occurrence of
certain facts or events,
take
account of like facts or events occurring in any Member
State as though they had taken place in its own territory.

that Member State shall

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Article 6

Aggregation of periods

Unless otherwise provided for by this Regulation,
competent
makes:

the
institution of a Member State whose legislation

— the acquisition, retention, duration or recovery of the right

to benefits,

— the coverage by legislation, or

— the access to or the exemption from compulsory, optional,

continued or voluntary insurance,

insurance,
conditional upon the completion of periods of
to the
employment,
self-employment or
insurance,
extent necessary,
employment, self-employment or residence completed under
the legislation of any other Member State as though they
were periods completed under the legislation which it applies.

take into account periods of

residence

shall,

Article 7

Waiving of residence rules

Unless otherwise provided for by this Regulation, cash benefits
payable under the legislation of one or more Member States or
under this Regulation shall not be subject to any reduction,
amendment,
confiscation on
account of the fact that the beneficiary or the members of
his family reside in a Member State other than that in which
the institution responsible for providing benefits is situated.

suspension, withdrawal or

entered into by the Member States before the date of
application of
this Regulation shall, however, continue to
apply provided that they are more favourable to the bene-
ficiaries or if they arise from specific historical circumstances
and their effect is limited in time. For these provisions to
remain applicable, they shall be included in Annex II. If, on
objective grounds, it is not possible to extend some of these
provisions to all persons to whom the Regulation applies this
shall be specified.

2.
Two or more Member States may, as the need arises,
conclude conventions with each other based on the principles
of this Regulation and in keeping with the spirit thereof.

Article 9

Declarations by the Member States on the scope of this
Regulation

1.
The Member States shall notify the Commission of the
European Communities in writing of the declarations referred
to in Article 1(l), the legislation and schemes referred to in
Article 3,
the Conventions entered into as referred to in
Article 8(2) and the minimum benefits referred to in Article
58, as well as substantive amendments made subsequently.
indicate the date of entry into force
Such notifications shall
of the laws and schemes in question or,
in the case of the
declarations provided for in Article 1(l), the date from which
this Regulation will apply to the schemes specified in the
declarations by the Member States.

2.
These notifications shall be submitted to the Commission
of the European Communities every year and published in the
Official Journal of the European Union.

Article 8

Relations between this Regulation and other coordination
instruments

Article 10

Prevention of overlapping of benefits

This Regulation shall

1.
security
convention applicable between Member States falling under
its scope. Certain provisions of social security conventions

replace

social

any

Unless otherwise specified, this Regulation shall neither confer
nor maintain the right to several benefits of the same kind for
one and the same period of compulsory insurance.

TITLE II

DETERMINATION OF THE LEGISLATION APPLICABLE

Article 11

General rules

1.
Persons to whom this Regulation applies shall be subject
to the legislation of a single Member State only. Such legis-
lation shall be determined in accordance with this Title.

pursuing the said activity. This shall not apply to invalidity,
old-age or survivors' pensions or to pensions in respect of
accidents at work or occupational diseases or to sickness
benefits in cash covering treatment for an unlimited period.

3.

Subject to Articles 12 to 16:

2.
For the purposes of this Title, persons receiving cash
benefits because or as a consequence of their activity as an
employed or self-employed person shall be considered to be

(a) a person pursuing an activity as an employed or self-
employed person in a Member State shall be subject to
the legislation of that Member State;

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(b) a civil servant shall be subject to the legislation of the
Member State to which the administration employing
him is subject;

various employers whose registered office or place of
business is in different Member States, or

(c) a person receiving unemployment benefits in accordance
with Article 65 under the legislation of the Member State
of residence shall be subject
that
Member State;

to the legislation of

(b) the legislation of the Member State in which the registered
office or place of business of the undertaking or employer
employing him is
if he does not pursue a
substantial part of his activities in the Member State of
residence.

situated,

(d) a person called up or recalled for service in the armed
forces or for civilian service in a Member State shall be
subject to the legislation of that Member State;

2.
A person who normally pursues an activity as a self-
employed person in two or more Member States shall be
subject to:

(e) any other person to whom subparagraphs (a) to (d) do not
apply shall be subject to the legislation of the Member State
of residence, without prejudice to other provisions of this
Regulation guaranteeing him benefits under the legislation
of one or more other Member States.

4.
For the purposes of this Title, an activity as an employed
or self-employed person normally pursued on board a vessel at
sea flying the flag of a Member State shall be deemed to be an
activity pursued in the said Member State. However, a person
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
another Member State shall be subject to the legislation of
the latter Member State if he resides in that State. The under-
taking or person paying the remuneration shall be considered
as the employer for the purposes of the said legislation.

Article 12

Special rules

1.
A person who pursues an activity as an employed person
in a Member State on behalf of an employer which normally
carries out
its activities there and who is posted by that
employer to another Member State to perform work on that
employer's behalf shall continue to be subject to the legislation
of
the anticipated
duration of such work does not exceed twenty-four months
and that he is not sent to replace another person.

the first Member State, provided that

2.
A person who normally pursues an activity as a self-
employed person in a Member State who goes to pursue a
similar activity in another Member State shall continue to be
subject to the legislation of the first Member State, provided
that the anticipated duration of such activity does not exceed
twenty-four months.

Article 13

Pursuit of activities in two or more Member States

1.
A person who normally pursues an activity as an
employed person in two or more Member States shall be
subject to:

(a) the legislation of

the Member State of residence if he
pursues a substantial part of his activity in that Member
State or if he is employed by various undertakings or

(a) the legislation of

the Member State of residence if he
pursues a substantial part of his activity in that Member
State; or

(b) the legislation of the Member State in which the centre of
interest of his activities is situated, if he does not reside in
one of the Member States in which he pursues a substantial
part of his activity.

3.
A person who normally pursues an activity as an
employed person and an activity as a self-employed person
in different Member States shall be subject to the legislation
of the Member State in which he pursues an activity as an
employed person or, if he pursues such an activity in two or
more Member States,
legislation determined in
accordance with paragraph 1.

to the

4.
A person who is employed as a civil servant by one
Member State and who pursues an activity as an employed
person and/or as a self-employed person in one or more
other Member States shall be subject to the legislation of the
Member State to which the administration employing him is
subject.

Persons referred to in paragraphs 1 to 4 shall be treated,
5.
for the purposes of the legislation determined in accordance
with these provisions, as though they were pursuing all their
activities as employed or self-employed persons and were
receiving all their income in the Member State concerned.

Article 14

Voluntary insurance or optional continued insurance

1.
Articles 11 to 13 shall not apply to voluntary insurance
or to optional continued insurance unless, in respect of one of
the branches referred to in Article 3(1), only a voluntary
scheme of insurance exists in a Member State.

2. Where, by virtue of the legislation of a Member State the
person concerned is subject to compulsory insurance in that
Member State, he may not be subject to a voluntary insurance
scheme or an optional continued insurance scheme in another
Member State. In all other cases in which, for a given branch,
there is a choice between several voluntary insurance schemes
or optional
the person
insurance
concerned shall join only the scheme of his choice.

continued

schemes,

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However, in respect of invalidity, old age and survivors'
3.
benefits,
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, provided that he has been subject, at
some stage in his career, to the legislation of the first Member
State because or as a consequence of an activity as an
employed or self-employed person and if such overlapping is
explicitly or implicitly allowed under the legislation of the first
Member State.

4.
If the legislation of any Member State makes admission to
voluntary insurance or optional continued insurance condi-
tional upon residence in that Member State,
the equal
treatment of residence in another Member State as provided
under Article 5(b) shall apply only to persons who have been
subject, at some earlier stage, to the legislation of the first
Member State on the basis of an activity as an employed or
self-employed person.

employed, to the legislation of the Member State to which they
were last subject or to the legislation of the Member State
whose nationals they are, in respect of provisions other than
those relating to family allowances, provided under the scheme
applicable to such staff. This right of option, which may be
exercised once only, shall take effect from the date of entry
into employment.

Article 16

Exceptions to Articles 11 to 15

1.
Two or more Member States, the competent authorities
of these Member States or the bodies designated by these auth-
orities may by common agreement provide for exceptions to
Articles 11 to 15 in the interest of certain persons or categories
of persons.

Article 15

Auxiliary staff of the European Communities

Auxiliary staff of the European Communities may opt to be
subject to the legislation of the Member State in which they are

2.
A person who receives a pension or pensions under the
legislation of one or more Member States, who resides in
another Member State, may at his request be exempted from
application of the legislation of the latter State provided that he
is not subject to that legislation on account of pursuing an
activity as an employed or self-employed person.

SPECIAL PROVISIONS CONCERNING THE VARIOUS CATEGORIES OF BENEFITS

TITLE III

CHAPTER 1

Sickness, maternity and equivalent paternity benefits

S e c t i o n 1

t h e i r
I n s u r e d p e r s o n s
f a m i l i e s , e x c e p t p e n s i o n e r s a n d m e m b e r s
o f t h e i r f a m i l i e s

a n d m e m b e r s o f

Article 17

Residence in a Member State other than the competent
Member State

An insured person or members of his family who reside in a
Member State other than the competent Member State shall
receive in the Member State of residence benefits in kind
provided, on behalf of the competent institution, by the insti-
tution of
in accordance with the
provisions of the legislation it applies, as though they were
insured under the said legislation.

the place of residence,

Article 18

Stay in the competent Member State when residence is in
another Member State — Special rules for the members of
the families of frontier workers

1.
the
Unless otherwise provided for by paragraph 2,
insured person and the members of his family referred to in

Article 17 shall also be entitled to benefits in kind while
staying in the competent Member State. The benefits in kind
shall be provided by the competent institution and at its own
expense, in accordance with the provisions of the legislation it
applies, as though the persons concerned resided in that
Member State.

2.
The members of the family of a frontier worker shall be
entitled to benefits in kind during their stay in the competent
Member State, unless this Member State is listed in Annex III.
In this event, the members of the family of a frontier worker
shall be entitled to benefits in kind in the competent Member
State under the conditions laid down in Article 19(1).

Article 19

Stay outside the competent Member State

Unless otherwise provided for by paragraph 2, an insured
1.
person and the members of his family staying in a Member
State other than the competent Member State shall be entitled
to the benefits in kind which become necessary on medical
grounds during their stay, taking into account the nature of
the benefits and the expected length of the stay. These benefits
shall be provided on behalf of the competent institution by the
institution of
in accordance with the
provisions of the legislation it applies, as though the persons
concerned were insured under the said legislation.

the place of

stay,

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The Administrative Commission shall establish a list of
2.
benefits in kind which, in order to be provided during a stay in
another Member State, require for practical reasons a prior
agreement between the person concerned and the institution
providing the care.

The competent institution of a Member State whose legis-
2.
lation stipulates that the calculation of cash benefits shall be
based on average income or on an average contribution basis
shall determine such average income or average contribution
basis exclusively by reference to the incomes confirmed as
having been paid, or contribution bases applied, during the
periods completed under the said legislation.

Article 20

Travel with the purpose of receiving benefits in kind —
Authorisation to receive appropriate treatment outside
the Member State of residence

Unless otherwise provided for by this Regulation, an
1.
insured person travelling to another Member State with the
purpose of receiving benefits in kind during the stay shall
seek authorisation from the competent institution.

in kind provided, on behalf of

2.
An insured person who is authorised by the competent
institution to go to another Member State with the purpose of
receiving the treatment appropriate to his condition shall
receive the benefits
the
competent institution, by the institution of the place of stay,
in accordance with the provisions of the legislation it applies,
as though he were insured under the said legislation. The
in
authorisation shall be accorded where
question is among the benefits provided for by the legislation
in the Member State where the person concerned resides and
where he cannot be given such treatment within a time-limit
which is medically justifiable, taking into account his current
state of health and the probable course of his illness.

treatment

the

Paragraphs 1 and 2 shall apply mutatis mutandis to the

3.
members of the family of an insured person.

If the members of the family of an insured person reside
4.
in a Member State, other than the Member State in which the
insured person resides, and this Member State has opted for
reimbursement on the basis of fixed amounts, the cost of the
benefits in kind referred to in paragraph 2 shall be borne by
the institution of the place of residence of the members of the
family. In this case, for the purposes of paragraph 1, the insti-
tution of the place of residence of the members of the family
shall be considered to be the competent institution.

Article 21

Cash benefits

1.
An insured person and members of his family residing or
staying in a Member State other than the competent Member
State shall be entitled to cash benefits provided by the
institution in accordance with the legislation it
competent
applies. By agreement between the competent institution and
the institution of the place of residence or stay, such benefits
may, however, be provided by the institution of the place of
residence or stay at the expense of the competent institution in
accordance with the legislation of the competent Member State.

3.
The competent institution of a Member State whose legis-
lation provides that the calculation of cash benefits shall be
based on standard income shall take into account exclusively
the standard income or, where appropriate,
the average of
standard incomes for the periods completed under the said
legislation.

Paragraphs 2 and 3 shall apply mutatis mutandis to cases
4.
where the legislation applied by the competent institution lays
down a specific reference period, which corresponds in the
case in question either wholly or partly to the periods which
the person concerned has completed under the legislation of
one or more other Member States.

Article 22

Pension claimants

the legislation of

in kind under
competent,

1.
An insured person who, on making a claim for a
pension, or during the investigation thereof, ceases to be
the
entitled to benefits
Member State
remain entitled to
last
benefits in kind under the legislation of the Member State in
which he resides, provided that the pension claimant satisfies
the insurance conditions of the legislation of the Member State
referred to in paragraph 2. The right to benefits in kind in the
Member State of residence also applies to the members of the
family of the pension claimant.

shall

2.
The benefits in kind shall be chargeable to the institution
of the Member State which, in the event of a pension being
awarded, would become competent under Articles 23 to 25.

S e c t i o n 2

P e n s i o n e r s a n d m e m b e r s o f t h e i r f a m i l i e s

Article 23

Right to benefits in kind under the legislation of the
Member State of residence

A person who receives a pension or pensions under the legis-
lation of two or more Member States, of which one is the
Member State of residence, and who is entitled to benefits in
kind under the legislation of that Member State, shall, with the
members of his family, receive such benefits in kind from and
at the expense of the institution of the place of residence, as
though he were a pensioner whose pension was payable solely
under the legislation of that Member State.

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Article 24

No right to benefits in kind under the legislation of the
Member State of residence

in kind under

the legislation of

A person who receives a pension or pensions under the
1.
legislation of one or more Member States and who is not
entitled to benefits
the
Member State of residence, shall nevertheless receive such
insofar
benefits for himself and the members of his family,
as he would be entitled thereto under the legislation of the
Member State or of at
the Member States
least one of
competent in respect of his pensions,
if he resided in that
Member State. The benefits in kind shall be provided at the
expense of the institution referred to in paragraph 2 by the
institution of the place of residence, as though the person
concerned were entitled to a pension and benefits in kind
under the legislation of that Member State.

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

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

(b) where the pensioner is entitled to benefits in kind 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 person has been
should the
longest period of
subject
application of this rule result in several institutions being
responsible for the cost of benefits, the cost shall be borne
by the institution applying the legislation to which the
pensioner was last subject.

time;

the

for

Article 25

Pensions under the legislation of one or more Member
States other than the Member State of residence, where
there is a right to benefits in kind in the latter Member
State

Where the person receiving a pension or pensions under the
legislation of one or more Member States resides in a Member
State under whose legislation the right to receive benefits in
kind is not subject to conditions of insurance, or of activity as
an employed or self-employed person, and no pension is
received from that Member State, 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 his pensions determined according to Article 24(2),
to the extent that the pensioner and the members of his family
they resided in that
would be entitled to such benefits if
Member State.

Article 26

Residence of members of the family in a Member State
other than the one in which the pensioner resides

Members of the family of a person receiving a pension or
pensions under the legislation of one or more Member States

the place of

who reside in a Member State other than the one in which the
pensioner resides shall be entitled to receive benefits in kind
from the institution of
residence in
accordance with the provisions of the legislation it applies,
in kind
insofar as
according to the legislation of a Member State. The costs
shall be borne by the competent institution responsible for
the costs of the benefits in kind provided to the pensioner in
his Member State of residence.

is entitled to benefits

the pensioner

their

Article 27

Stay of the pensioner or the members of his family in a
Member State other than the Member State in which they
reside — Stay in the competent Member State — Author-
isation for appropriate treatment outside the Member
State of residence

Article 19 shall apply mutatis mutandis to a person
1.
receiving a pension or pensions under the legislation of one
or more Member States and entitled to benefits in kind under
the legislation of one of the Member States which provide his
pension(s) or to the members of his family, who are staying in
a Member State other than the one in which they reside.

2.
Article 18(1) shall apply mutatis mutandis to the persons
described in paragraph 1 when they stay in the Member State
in which is situated the competent institution responsible for
the cost of the benefits in kind provided to the pensioner in his
Member State of residence and the said Member State has
opted for this and is listed in Annex IV.

3.
Article 20 shall apply mutatis mutandis to a pensioner
and/or the members of his family who are staying in a Member
State other than the one in which they reside with the purpose
of receiving there the treatment appropriate to their condition.

4.
Unless otherwise provided for by paragraph 5, the cost of
the benefits in kind referred to in paragraphs 1 to 3 shall be
borne by the competent institution responsible for the cost of
benefits in kind provided to the pensioner in his Member State
of residence.

The cost of the benefits in kind referred to in paragraph 3
5.
shall be borne by the institution of the place of residence of the
pensioner or of the members of his family, if these persons
reside in a Member State which has opted for reimbursement
on the basis of fixed amounts. In these cases, for the purposes
of paragraph 3, the institution of the place of residence of the
pensioner or of the members of his family shall be considered
to be the competent institution.

Article 28

Special rules for retired frontier workers

to continue to receive benefits

A frontier worker who retires is entitled in case of
1.
in kind in the
sickness
Member State where he last pursued his activity as an
employed or
is a
continuation of treatment which began in that Member State.
The term ‘continuation of
treatment’ means the continued
investigation, diagnosis and treatment of an illness.

self-employed person,

insofar as

this

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A pensioner who, in the five years preceding the effective
2.
date of an old-age or invalidity pension has been pursuing an
activity as an employed or self-employed person for at least
two years as a frontier worker shall be entitled to benefits in
kind in the Member State in which he pursued such an activity
as a frontier worker,
if this Member State and the Member
State in which the competent institution responsible for the
costs of the benefits in kind provided to the pensioner in his
Member State of residence is situated have opted for this and
are both listed in Annex V.

3.
Paragraph 2 shall apply mutatis mutandis to the members
of the family of a former frontier worker or his survivors if,
they were
during the periods referred to in paragraph 2,
entitled to benefits in kind under Article 18(2), even if the
frontier worker
pension commenced,
provided he had been pursuing an activity as an employed
least
or self-employed person as a frontier worker for at
three years in the five years preceding his death.

before

died

his

4.
Paragraphs 2 and 3 shall be applicable until the person
concerned becomes subject to the legislation of a Member State
on the basis of an activity as an employed or self-employed
person.

The cost of the benefits in kind referred to in paragraphs
5.
1 to 3 shall be borne by the competent institution responsible
for the cost of benefits in kind provided to the pensioner or to
his survivors in their respective Member States of residence.

Article 29

Cash benefits for pensioners

1.
Cash benefits shall be paid to a person receiving a
pension or pensions under the legislation of one or more
Member States, by the competent institution of the Member
State in which is situated the competent institution responsible
for the cost of benefits in kind provided to the pensioner in his
Member State of residence. Article 21 shall apply mutatis
mutandis.

Paragraph 1 shall also apply to the members of a

2.
pensioner's family.

Article 30

Contributions by pensioners

contributions

1.
The institution of a Member State which is responsible
under the legislation it applies for making deductions in respect
and equivalent
of
paternity benefits, may request and recover such deductions,
calculated in accordance with the legislation it applies, only to
the extent that the cost of the benefits under Articles 23 to 26
is to be borne by an institution of the said Member State.

sickness, maternity

for

in the cases

2. Where,
the
acquisition of sickness, maternity and equivalent paternity
benefits is subject to the payment of contributions or similar

referred to in Article 25,

payments under the legislation of a Member State in which the
pensioner concerned resides, these contributions shall not be
payable by virtue of such residence.

S e c t i o n 3

C o m m o n p r o v i s i o n s

Article 31

General provision

Articles 23 to 30 shall not apply to a pensioner or the
members of his family who are entitled to benefits under the
legislation of a Member State on the basis of an activity as an
employed or self-employed person. In such a case, the person
concerned shall be subject, for the purposes of this Chapter, to
Articles 17 to 21.

Article 32

Prioritising of the right to benefits in kind — Special rule
for the right of members of the family to benefits in the
Member State of residence

1.
An independent right to benefits in kind based on the
legislation of a Member State or on this Chapter shall take
priority over a derivative right to benefits for members of a
family. A derivative right to benefits in kind shall, however,
take priority over independent rights, where the independent
right in the Member State of residence exists directly and solely
on the basis of the residence of the person concerned in that
Member State.

2. Where the members of the family of an insured person
reside in a Member State under whose legislation the right to
benefits in kind is not subject to conditions of insurance or
activity as an employed or self-employed person, benefits in
kind shall be provided at the expense of the competent insti-
tution in the Member State in which they reside, if the spouse
or the person caring for the children of the insured person
pursues an activity as an employed or self-employed person
in the said Member State or receives a pension from that
Member State on the basis of an activity as an employed or
self-employed person.

Article 33

Substantial benefits in kind

An insured person or a member of his family who has
1.
had a right
to a prosthesis, a major appliance or other
substantial benefits in kind recognised by the institution of a
Member State, before he became insured under the legislation
applied by the institution of another Member State, shall
receive such benefits at the expense of the first institution,
even if they are awarded after the said person has already
become insured under the legislation applied by the second
institution.

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The Administrative Commission shall draw up the list of

2.
benefits covered by paragraph 1.

shall also apply to benefits relating to accidents at work or
occupational diseases.

Article 34

Overlapping of long-term care benefits

1.
If a recipient of long-term care benefits in cash, which
have to be treated as sickness benefits and are therefore
provided by the Member State competent for cash benefits
under Articles 21 or 29, is, at the same time and under this
Chapter, entitled to claim benefits in kind intended for the
same purpose from the institution of the place of residence
or stay in another Member State, and an institution in the
first Member State is also required to reimburse the cost of
these benefits in kind under Article 35, the general provision
on prevention of overlapping of benefits laid down in Article
10 shall be applicable, with the following restriction only: if
the person concerned claims and receives the benefit in kind,
the amount of the benefit in cash shall be reduced by the
amount of the benefit in kind which is or could be claimed
from the institution of
the first Member State required to
reimburse the cost.

2.
The Administrative Commission shall draw up the list of
the cash benefits and benefits in kind covered by paragraph 1.

Two or more Member States, or their competent auth-
3.
orities, may agree on other or supplementary measures which
shall not be less advantageous for the persons concerned than
the principles laid down in paragraph 1.

Article 35

Reimbursements between institutions

The benefits in kind provided by the institution of a
1.
Member State on behalf of the institution of another Member
State under this Chapter shall give rise to full reimbursement.

2.
The reimbursements referred to in paragraph 1 shall be
determined and effected in accordance with the arrangements
set out in the Implementing Regulation, either on production
of proof of actual expenditure, or on the basis of
fixed
amounts
legal or administrative
structures of which are such that the use of reimbursement
on the basis of actual expenditure is not appropriate.

for Member States

the

3.
Two or more Member States, and their competent auth-
orities, may provide for other methods of reimbursement or
waive all reimbursement between the institutions coming under
their jurisdiction.

CHAPTER 2

Benefits in respect of accidents at work and occupational
diseases

Article 36

Right to benefits in kind and in cash

1. Without prejudice to any more favourable provisions in
paragraph 2 of this Article, Articles 17, 18(1), 19(1) and 20(1)

2.
A person who has sustained an accident at work or has
contracted an occupational disease and who resides or stays in
a Member State other than the competent Member State shall
the scheme
be entitled to the special benefits in kind of
covering
diseases
provided, on behalf of the competent institution, by the insti-
tution of the place of residence or stay in accordance with the
legislation which it applies, as though he were insured under
the said legislation.

and occupational

at work

accidents

Article 21 shall also apply to benefits falling within this

3.
Chapter.

Article 37

Costs of transport

1.
The competent institution of a Member State whose legis-
lation provides for meeting the costs of transporting a person
who has sustained an accident at work or is suffering from an
occupational disease, either to his place of residence or to a
hospital, shall meet such costs to the corresponding place in
another Member State where the person resides, provided that
that institution gives prior authorisation for such transport,
duly taking into account the reasons justifying it. Such auth-
orisation shall not be required in the case of a frontier worker.

2.
The competent institution of a Member State whose legis-
lation provides for meeting the costs of transporting the body
of a person killed in an accident at work to the place of burial
shall, in accordance with the legislation it applies, meet such
costs to the corresponding place in another Member State,
where the person was residing at the time of the accident.

Article 38

Benefits for an occupational disease where the person
suffering from such a disease has been exposed to the
same risk in several Member States

When a person who has contracted an occupational disease
has, under the legislation of
two or more Member States,
pursued an activity which by its nature is likely to cause the
said disease, the benefits that he or his survivors may claim
shall be provided exclusively under the legislation of the last of
those States whose conditions are satisfied.

Article 39

Aggravation of an occupational disease

In the event of aggravation of an occupational disease for
which a person suffering from such a disease has received or
is receiving benefits under the legislation of a Member State,
the following rules shall apply:

(a)

if the person concerned, while in receipt of benefits, has
not pursued, under the legislation of another Member State
an activity as an employed or self-employed person likely
to cause or aggravate
the
competent institution of the first Member State shall bear
the cost of the benefits under the provisions of the legis-
lation which it applies, taking into account the aggravation;

in question,

the disease

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institution of

the competent

(b) if the person concerned, while in receipt of benefits, has
pursued such an activity under the legislation of another
Member State,
the first
Member State shall bear the cost of the benefits under
the legislation it applies without taking the aggravation
the second
into account. The competent
to the person
Member State shall grant a supplement
concerned, the amount of which shall be equal
to the
difference between the amount of benefits due after the
aggravation and the amount which would have been due
prior to the aggravation under the legislation it applies, if
the disease in question had occurred under the legislation
of that Member State;

institution of

confirmed subsequently, under the legislation of the other
Member State under which the accident at work or the
occupational disease had occurred or been confirmed.

Article 41

Reimbursements between institutions

Article 35 shall also apply to benefits falling within this
1.
Chapter, and reimbursement shall be made on the basis of
actual costs.

(c) the rules concerning reduction, suspension or withdrawal
laid down by the legislation of a Member State shall not be
invoked against persons receiving benefits provided by
two Member States in accordance with
institutions of
subparagraph (b).

2.
Two or more Member States, or their competent auth-
orities, may provide for other methods of reimbursement or
waive all reimbursement between the institutions under their
jurisdiction.

Article 40

Rules for taking into account the special features of
certain legislation

If there is no insurance against accidents at work or
1.
occupational diseases in the Member State in which the
person concerned resides or stays, or if such insurance exists
but there is no institution responsible for providing benefits in
kind, those benefits shall be provided by the institution of the
place of residence or stay responsible for providing benefits in
kind in the event of sickness.

If there is no insurance against accidents at work or
2.
occupational diseases in the competent Member State,
the
provisions of this Chapter concerning benefits in kind shall
nevertheless be applied to a person who is entitled to those
benefits in the event of sickness, maternity or equivalent
paternity under the legislation of that Member State if the
person sustains an accident at work or suffers from an occu-
pational disease during a residence or stay in another Member
State. Costs
shall be borne by the institution which is
competent for the benefits in kind under the legislation of
the competent Member State.

3.
Article 5 shall apply to the competent institution in a
Member State as regards the equivalence of accidents at work
and occupational diseases which either have occurred or have
been confirmed subsequently under the legislation of another
Member State when assessing the degree of incapacity,
the
right to benefits or the amount thereof, on condition that:

(a) no compensation is due in respect of an accident at work
or an occupational disease which had occurred or had been
confirmed previously under the legislation it applies; and

(b) no compensation is due in respect of an accident at work
or an occupational disease which had occurred or had been

CHAPTER 3

Death grants

Article 42

Right to grants where death occurs in, or where the
person entitled resides in, a Member State other than
the competent Member State

1. When an insured person or a member of his family dies
in a Member State other than the competent Member State, the
death shall be deemed to have occurred in the competent
Member State.

2.
The competent institution shall be obliged to provide
death grants payable under the legislation it applies, even if
the person entitled resides in a Member State other than the
competent Member State.

Paragraphs 1 and 2 shall also apply when the death is the

3.
result of an accident at work or an occupational disease.

Article 43

Provision of benefits in the event of the death of a
pensioner

In the event of the death of a pensioner who was entitled
1.
to a pension under the legislation of one Member State, or to
pensions under the legislations of two or more Member States,
when such pensioner was residing in a Member State other
the cost of
the institution responsible for
than that of
benefits in kind provided under Articles 24 and 25,
the
death grants payable under the legislation administered by
that
its own expense as
though the pensioner had been residing at the time of his
death in the Member State in which that institution is situated.

institution shall be provided at

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Paragraph 1 shall apply mutatis mutandis to the members

2.
of the family of a pensioner.

least one is not a type A legislation, shall be entitled to benefits
under Chapter 5, which shall apply mutatis mutandis taking
into account paragraph 3.

CHAPTER 4

Invalidity Benefits

Article 44

However,

2.
if the person concerned has been previously
subject to a type B legislation and suffers incapacity for work
leading to invalidity while subject to a type A legislation, he
shall receive benefits in accordance with Article 44, provided
that:

Persons subject only to type A legislation

this Chapter,

For the purposes of

1.
‘type A legislation’
means any legislation under which the amount of invalidity
benefits is independent of
the periods of
insurance or residence and which is expressly included by
the competent Member State in Annex VI, and ‘type B legis-
lation’ means any other legislation.

the duration of

2.
A person who has been successively or alternately subject
to the legislation of two or more Member States and who has
completed periods of insurance or residence exclusively under
type A legislations, shall be entitled to benefits only from the
institution of
legislation was
the Member State whose
applicable at the time when the incapacity for work followed
by invalidity occurred, taking into account, where appropriate,
Article 45, and shall receive such benefits in accordance with
that legislation.

3.
A person who is not entitled to benefits under paragraph
2, shall receive the benefits to which he is still entitled under
the legislation of another Member State, taking into account,
where appropriate, Article 45.

4.
If the legislation referred to in paragraph 2 or 3 contains
rules for the reduction, suspension or withdrawal of invalidity
benefits in the case of overlapping with other income or with
benefits of a different kind within the meaning of Article 53(2),
Articles 53(3) and 55(3) shall apply mutatis mutandis.

— he satisfies the conditions of that legislation exclusively or
of others of the same type, taking into account, where
appropriate, Article 45, but without having recourse to
periods of insurance or residence completed under a type
B legislation, and

— he does not assert any claims to old-age benefits, taking

into account Article 50(1).

A decision taken by an institution of a Member State
3.
invalidity of a claimant shall be
concerning the degree of
binding on the
institution of any other Member State
concerned, provided that the concordance between the legis-
lation of these Member States on conditions relating to the
degree of invalidity is acknowledged in Annex VII.

Article 47

Aggravation of invalidity

1.
In the case of aggravation of an invalidity for which a
person is receiving benefits under the legislation of one or
the following provisions shall apply
more Member States,
taking the aggravation into account:

Article 45

(a) the benefits shall be provided in accordance with Chapter

5, applied mutatis mutandis;

Special provisions on aggregation of periods

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 or residence shall apply, where necessary, Article
51(1) mutatis mutandis.

(b) however, where the person concerned has been subject to
two or more type A legislations and since receiving benefit
has not been subject to the legislation of another Member
State, the benefit shall be provided in accordance with
Article 44(2).

Article 46

Persons subject either only to type B legislation or to type
A and B legislation

1.
A person who has been successively or alternately subject
to the legislation of two or more Member States, of which at

If the total amount of the benefit or benefits payable
2.
under paragraph 1 is lower than the amount of the benefit
which the person concerned was receiving at the expense of
the institution previously competent for payment, that insti-
tution shall pay him a supplement equal
to the difference
between the two amounts.

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If the person concerned is not entitled to benefits at the
3.
the
expense of an institution of another Member State,
competent
State previously
competent shall provide the benefits, according to the legis-
the aggravation and,
lation it applies,
where appropriate, Article 45.

taking into account

institution of

the Member

Article 48

Conversion of invalidity benefits into old-age benefits

1.
Invalidity benefits shall be converted into old-age benefits,
where appropriate, under the conditions laid down by the
legislation or legislations under which they are provided and
in accordance with Chapter 5.

2. Where a person receiving invalidity benefits can establish
a claim to old-age benefits under the legislation of one or more
other Member States, in accordance with Article 50, any insti-
tution 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 it applies until paragraph
1 becomes applicable in respect of
institution, or
otherwise for as long as the person concerned satisfies the
conditions for such benefits.

that

3. Where invalidity benefits provided under the legislation
in accordance with Article 44, are
of a Member State,
converted into old-age benefits
the person
and where
concerned does not yet satisfy the conditions laid down by
the legislation of one or more of the other Member States
for
the person concerned shall
receive, from that or those Member States, invalidity benefits
from the date of the conversion.

receiving those benefits,

CHAPTER 5

Old-age and survivors' pensions

Article 50

General provisions

1.
All the competent institutions shall determine entitlement
to benefit, under all the legislations of the Member States to
which the person concerned has been subject, when a request
for award has been submitted, unless the person concerned
expressly requests deferment of the award of old-age benefits
under the legislation of one or more Member States.

2.
If at a given moment the person concerned does not
satisfy, or no longer satisfies, the conditions laid down by all
the legislations of the Member States to which he has been
subject, the institutions applying legislation the conditions of
which have been satisfied shall not take into account, when
performing the calculation in accordance with Article 52(1) (a)
or
the
conditions of which have not been satisfied, or are no longer
satisfied, where this gives rise to a lower amount of benefit.

the periods completed under

the legislations

(b),

Paragraph 2 shall apply mutatis mutandis when the
3.
person concerned has expressly requested deferment of the
award of old-age benefits.

4.
A new calculation shall be performed automatically as
and when the conditions to be fulfilled under the other legis-
lations are satisfied or when a person requests the award of an
old-age benefit deferred in accordance with paragraph 1, unless
the periods completed under the other legislations have already
been taken into account by virtue of paragraph 2 or 3.

Those invalidity benefits shall be provided in accordance with
Chapter 5 as if that Chapter had been applicable at the time
when the incapacity for work leading to invalidity occurred,
until the person concerned satisfies the qualifying conditions
for old-age benefit
legislations
concerned or, where such conversion is not provided for, for
as long as he is entitled to invalidity benefits under the latter
legislation or legislations.

laid down by the national

4.
The invalidity benefits provided under Article 44 shall be
recalculated in accordance with Chapter 5 as soon as the bene-
ficiary satisfies the qualifying conditions for invalidity benefits
laid down by a type B legislation, or as soon as he receives
old-age benefits under the legislation of another Member State.

Article 51

Special provisions on aggregation of periods

1. Where the legislation of a Member State makes the
granting of certain benefits conditional upon the periods of
insurance having been completed only in a specific activity
as an employed or self-employed person or in an occupation
which is subject to a special scheme for employed or self-
employed persons, the competent institution of that Member
State shall take into account periods completed under the legis-
lation of other Member States only if completed under a corre-
sponding scheme or, failing that, in the same occupation, or
where appropriate,
in the same activity as an employed or
self-employed person.

Article 49

Special provisions for civil servants

Articles 6, 44, 46, 47, 48 and Article 60(2) and (3) shall apply
mutatis mutandis to persons covered by a special scheme for
civil servants.

If, account having been taken of the periods thus completed,
the person concerned does not satisfy the conditions for receipt
of the benefits of a special scheme, these periods shall be taken
into account for providing the benefits of the general scheme
or, failing that, of the scheme applicable to manual or clerical
workers, as
the person
the case may be, provided that
concerned had been affiliated to one or other of those schemes.

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The periods of

insurance completed under a special
2.
scheme of a Member State shall be taken into account for
providing the benefits of the general scheme or, failing that,
of the scheme applicable to manual or clerical workers, as the
the
case may be, of another Member State, provided that
person concerned had been affiliated to one or other of
those schemes, even if those periods have already been taken
into account in the latter Member State under a special scheme.

3. Where the legislation of a Member State makes the
acquisition, retention or recovery of the right to benefits condi-
tional 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 case of insurance under the
in accordance with the
legislation of another Member State,
procedures provided in Annex XI
for each Member State
concerned.

Article 52

Award of benefits

The competent institution shall calculate the amount of

1.
the benefit that would be due:

(a) under the legislation it applies, only where the conditions
to benefits have been satisfied

required for entitlement
exclusively under national law (independent benefit);

(b) by calculating a theoretical amount and subsequently an

actual amount (pro-rata benefit), as follows:

(i) the theoretical amount of the benefit is equal to the
benefit to which the person concerned could lay claim
if all the periods of insurance and/or of residence which
have been completed under the legislations of the other
Member States had been completed under the legis-
lation it applies on the date of
the
benefit. If, under this legislation, the amount does not
depend on the duration of the periods completed, that
amount shall be regarded as being the theoretical
amount;

the award of

(ii) the competent institution shall then establish the actual
amount of
the pro-rata benefit by applying to the
theoretical amount the ratio between the duration of
the periods completed before materialisation of the risk
under the legislation it applies and the total duration of
the periods completed before materialisation of the risk
under
the Member States
the
concerned.

legislations of

all

The person concerned shall be entitled to receive from
3.
the competent institution of each Member State the higher of
the amounts calculated in accordance with subparagraphs 1(a)
and (b).

is equal

4. Where the calculation pursuant to subparagraph 1(a) in
one Member State always leads to a result that the independent
than the pro-rata benefit,
benefit
the
calculated
in accordance with
competent
institution may waive the pro-rata calculation,
under the conditions provided for in the Implementing Regu-
lation. Such situations are set out in Annex VIII.

subparagraph 1(b),

to or higher

Article 53

Rules to prevent overlapping

Any overlapping of

invalidity, old-age and survivors'
1.
benefits calculated or provided on the basis of periods of
insurance and/or residence completed by the same person
shall be considered to be overlapping of benefits of the same
kind.

2.
Overlapping of benefits which cannot be considered to be
of the same kind within the meaning of paragraph 1 shall be
considered to be overlapping of benefits of a different kind.

3.
The following provisions shall be applicable for the
purposes of rules to prevent overlapping laid down by the
legislation of a Member State in the case 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) the competent

institution shall

the
benefits or incomes acquired in another Member State
only where the legislation it applies provides for benefits
or income acquired abroad to be taken into account;

take into account

(b) the competent

institution shall

take into account

the
amount of benefits to be paid by another Member State
before deduction of tax, social security contributions and
other individual levies or deductions, unless the legislation
it applies provides for the application of rules to prevent
overlapping after such deductions, under the conditions
and the procedures laid down in the Implementing Regu-
lation;

(c)

the competent institution shall not take into account the
the legislation of
amount of benefits acquired under
another Member
voluntary
insurance or continued optional insurance;

State on the basis of

2. Where appropriate, the competent institution shall apply,
to the amount calculated in accordance with subparagraphs
1(a) and (b), all the rules relating to reduction, suspension or
withdrawal, under the legislation it applies, within the limits
provided for by Articles 53 to 55.

(d) if a single Member State applies rules to prevent over-
lapping because the person concerned receives benefits of
the same or of a different kind under the legislation of
other Member States or
acquired in other
Member States, the benefit due may be reduced solely by
the amount of such benefits or such income.

income

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Article 54

Overlapping of benefits of the same kind

1. Where benefits of the same kind due under the legislation
of two or more Member States overlap, the rules to prevent
overlapping laid down by the legislation of a Member State
shall not be applicable to a pro-rata benefit.

The rules to prevent overlapping shall apply to an inde-

2.
pendent benefit only if the benefit concerned is:

(a) a benefit, the amount of which does not depend on the

duration of periods of insurance or residence,

or

(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, overlapping with:

(i) a benefit of the same type, except where an agreement
has been concluded between two or more Member
States to avoid the same credited period being taken
into account more than once, or

(ii) a benefit referred to in subparagraph (a).

The benefits and agreements referred to in subparagraphs (a)
and (b) are listed in Annex IX.

Article 55

Overlapping of benefits of a different kind

If the receipt of benefits of a different kind or other
1.
income requires the application of the rules to prevent over-
lapping provided for by the legislation of the Member States
concerned regarding:

(a) two or more independent benefits, the competent insti-
tutions shall divide the amounts of the benefit or benefits
or other income, as they have been taken into account, by
the number of benefits subject to the said rules;

(c) one or more independent benefits and one or more
pro-rata benefits,
institutions shall apply
mutatis mutandis subparagraph (a) as regards independent
benefits and subparagraph (b) as regards pro-rata benefits.

the competent

2.
The competent institution shall not apply the division
stipulated in respect of independent benefits, if the legislation
it applies provides for account to be taken of benefits of a
different kind and/or other income and all other elements for
calculating part of their amount determined as a function of
the ratio between periods of
residence
referred to in Article 52(1)(b)(ii).

insurance and/or

3.
Paragraphs 1 and 2 shall apply mutatis mutandis where
the legislation of one or more Member States provides that a
right to a benefit cannot be acquired in the case where the
person concerned is in receipt of a benefit of a different kind,
payable under the legislation of another Member State, or of
other income.

Article 56

Additional provisions for the calculation of benefits

For

the calculation of

1.
the theoretical and pro-rata
amounts referred to in Article 52(1)(b), the following rules
shall apply:

(a) where the total length of the periods of insurance and/or
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 these Member States for receipt of full benefit, the
competent institution of that Member State shall take into
account this maximum period instead of the total length of
the periods completed; this method of calculation shall not
result in the imposition on that institution of the cost of a
benefit greater than the full benefit provided for by the
legislation it applies. This provision shall not apply to
benefits, the amount of which does not depend on the
length of insurance;

(b) the procedure for taking into account overlapping periods

is laid down in the Implementing Regulation;

this

the application of

however,
subparagraph cannot
deprive the person concerned of his status as a pensioner
for the purposes of the other Chapters of this Title under
the conditions and the procedures
laid down in the
Implementing Regulation;

(c)

(b) one or more pro-rata benefits, the competent institutions
shall take into account the benefit or benefits or other
income and all the elements stipulated for applying the
rules to prevent overlapping as a function of the ratio
between the periods of insurance and/or residence estab-
lished for the calculation referred to in Article 52(1)(b)(ii);

the legislation of a Member State provides that
shall be calculated on the basis of

the
if
incomes,
benefits
contributions, bases of contributions,
increases, earnings,
other amounts or a combination of more than one of
them (average, proportional,
the
competent institution shall:

fixed or

credited),

(i) determine the basis for calculation of the benefits in
accordance only with periods of insurance completed
under the legislation it applies;

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(ii) use, in order to determine the amount to be calculated
in accordance with the periods of
insurance and/or
residence completed under the legislation of the other
the same elements determined or
Member States,
completed
the periods of
recorded for
under the legislation it applies;

insurance

in accordance with the procedures laid down in Annex XI
for the Member State concerned.

taken into account for the payment in accordance with this
Chapter.

2.
The competent institution of that Member State shall pay
him throughout the period of his residence in its territory a
supplement equal to the difference between the total of the
benefits due under
the
minimum benefit.

this Chapter and the amount of

the elements

The provisions of

the legislation of a Member State
2.
concerning the revalorisation of
taken into
account for the calculation of benefits shall apply, as appro-
to the elements to be taken into account by the
priate,
competent
in accordance
with paragraph 1,
in respect of the periods of insurance or
residence completed under the legislation of other Member
States.

that Member State,

institution of

Article 57

Periods of insurance or residence of less than one year

Notwithstanding Article 52(1)(b),

1.
the institution of a
Member State shall not be required to provide benefits in
respect of periods completed under the legislation it applies
if:
which are taken into account when the risk materialises,

— the duration of the said periods is less than one year,

and

— taking only these periods into account no right to benefit is

acquired under that legislation.

Article 59

Recalculation and revaluation of benefits

If the method for determining benefits or the rules for
1.
the legislation of a
calculating benefits are altered under
Member State, or if
the person
concerned undergoes a relevant change which, under that legis-
lation, would lead to an adjustment of the amount of the
benefit, a recalculation shall be carried out
in accordance
with Article 52.

the personal situation of

On the other hand, if, by reason of an increase in the cost
2.
of living or changes in the level of income or other grounds for
adjustment, the benefits of the Member State concerned are
altered by a percentage or fixed amount, such percentage or
fixed amount
applied directly to the benefits
determined in accordance with Article 52, without the need
for a recalculation.

shall be

Article 60

Special provisions for civil servants

1.
Articles 6, 50, 51(3) and 52 to 59 shall apply mutatis
mutandis to persons covered by a special scheme for civil
servants.

insurance,

For the purposes of this Article, ‘periods’ shall mean all periods
residence,
of
which either qualify for, or directly increase,
the benefit
concerned.

self-employment or

employment,

2.
The competent institution of each of the Member States
concerned shall take into account the periods referred to in
paragraph 1, for the purposes of Article 52(1)(b)(i).

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 provided exclusively under the
legislation of the last of those Member States whose conditions
are satisfied, as if all the periods of insurance and residence
completed and taken into account in accordance with Articles
6 and 51(1) and (2) had been completed under the legislation
of that Member State.

Article 58

Award of a supplement

1.
A recipient of benefits to whom this Chapter applies may
not, in the Member State of residence and under whose legis-
lation a benefit is payable to him, be provided with a benefit
which is less than the minimum benefit fixed by that legislation
for a period of insurance or residence equal to all the periods

to the condition that all periods of

2.
However, if the legislation of a competent Member State
makes the acquisition, liquidation, retention or recovery of the
to benefits under a special scheme for civil servants
right
insurance be
subject
completed under one or more special
for civil
servants in that Member State, or be regarded by the legislation
of
the
take into account
competent
only the periods which can be recognised under the legislation
it applies.

that Member State as equivalent

to such periods,

that State shall

institution of

schemes

If, account having been taken of the periods thus completed,
the person concerned does not satisfy the conditions for the
receipt of
these periods shall be taken into
account for the award of benefits under the general scheme
or, failing that, the scheme applicable to manual or clerical
workers, as the case may be.

these benefits,

3. Where, under the legislation of a Member State, benefits
under a special scheme for civil servants are calculated on the
basis of the last salary or salaries received during a reference
period, the competent institution of that State shall take into
account, for the purposes of the calculation, only those salaries,
duly revalued, received during the period or periods for which
the person concerned was subject to that legislation.

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CHAPTER 6

Unemployment benefits

Article 61

Special rules on aggregation of periods of insurance,
employment or self-employment

1.
The competent institution of a Member State whose legis-
lation makes the acquisition, retention, recovery or duration of
the right to benefits conditional upon the completion of either
periods of insurance, employment or self-employment shall, to
the extent necessary, take into account periods of insurance,
employment or self-employment completed under the legis-
lation of any other Member State as though they were
completed under the legislation it applies.

However, when the applicable legislation makes the right to
benefits conditional on the completion of periods of insurance,
the periods of employment or self-employment completed
under the legislation of another Member State shall not be
taken into account unless such periods would have been
insurance had they been
considered to be periods of
completed in accordance with the applicable legislation.

Except in the cases referred to in Article 65(5)(a), the
2.
application of paragraph 1 of this Article shall be conditional
on the person concerned having the most recently completed,
in accordance with the legislation under which the benefits are
claimed:

— periods of insurance, if that legislation requires periods of

insurance,

— periods of employment, if that legislation requires periods

of employment, or

— periods of self-employment,
periods of self-employment.

if

that

legislation requires

Article 62

Calculation of benefits

The competent institution of a Member State whose legis-
1.
lation provides for the calculation of benefits on the basis of
the amount of the previous salary or professional income shall
take into account exclusively the salary or professional income
received by the person concerned in respect of his last activity
as an employed or self-employed person under the said legis-
lation.

Paragraph 1 shall also apply where the legislation admin-
2.
istered by the competent institution provides for a specific
reference period for the determination of the salary which
serves as a basis for the calculation of benefits and where,
for all or part of
the person concerned was
subject to the legislation of another Member State.

that period,

By derogation from paragraphs (1) and (2), as far as the
3.
frontier workers covered by Article 65(5)(a) are concerned, the
institution of the place of residence shall take into account the
salary or professional income received by the person concerned
in the Member State to whose legislation he was subject during
his last activity as an employed or self-employed person,
in
accordance with the Implementing Regulation.

Article 63

Special provisions for the waiving of residence rules

For the purposes of this Chapter, Article 7 shall apply only in
the cases provided for by Articles 64 and 65 and within the
limits prescribed therein.

Article 64

Unemployed persons going to another Member State

legislation of

1.
A wholly unemployed person who satisfies the conditions
of
the
for
to benefits and who goes to another Member
entitlement
State in order to seek work there, shall retain his entitlement
to unemployment benefits
following
conditions and within the following limits:

competent Member State

in cash under

the

the

(a) before his departure, the unemployed person must have
been registered as a person seeking work and have
remained available to the employment services of
the
four weeks after
competent Member State for at
becoming unemployed. However, the competent services
or institutions may authorise his departure before such
time has expired;

least

(b) the unemployed person must register as a person seeking
work with the employment services of the Member State to
which he has gone, be subject to the control procedure
organised there and adhere to the conditions laid down
under the legislation of that Member State. This condition
shall be considered satisfied for the period before regis-
tration if
the person concerned registers within seven
days of the date on which he ceased to be available to
the employment services of the Member State which he
left. In exceptional cases, the competent services or insti-
tutions may extend this period;

(c) entitlement to benefits shall be retained for a period of
three months
from the date when the unemployed
person ceased to be available to the employment services
of the Member State which he left, provided that the total
duration for which the benefits are provided does not
exceed the total duration of the period of his entitlement
to benefits under the legislation of that Member State; the
competent services or institutions may extend the period of
three months up to a maximum of six months,

(d) the benefits shall be provided by the competent institution
in accordance with the legislation it applies and at its own
expense.

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If

the person concerned returns

to the competent
2.
Member State on or before the expiry of the period during
which he is entitled to benefits under paragraph 1(c), he
shall continue to be entitled to benefits under the legislation
of that Member State. He shall lose all entitlement to benefits
under the legislation of the competent Member State if he does
not return there on or before the expiry of the said period,
unless the provisions of that legislation are more favourable. In
exceptional cases the competent services or institutions may
allow the person concerned to return at a later date without
loss of his entitlement.

Unless the legislation of the competent Member State is
3.
the
more favourable, between two periods of employment
maximum total period for which entitlement to benefits shall
be retained under paragraph 1 shall be three months; the
competent services or institutions may extend that period up
to a maximum of six months.

4.
The arrangements for exchanges of information, coop-
eration and mutual assistance between the institutions and
services of
the competent Member State and the Member
State to which the person goes in order to seek work shall
be laid down in the Implementing Regulation.

Article 65

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

1.
A person who is partially or intermittently unemployed
and who, during his last activity as an employed or self-
employed person, resided in a Member State other than the
competent Member State, shall make himself available to his
employer or to the employment services in the competent
Member State. He shall receive benefits in accordance with
the legislation of the competent Member State as if he were
residing in that Member State. These benefits shall be provided
by the institution of the competent Member State.

2.
last
A wholly unemployed person who, during his
activity as an employed or self-employed person, resided in a
Member State other than the competent Member State and
who continues to reside in that Member State or returns to
that Member State shall make himself available to the
employment
residence.
Without prejudice
to Article 64, a wholly unemployed
person may, as a supplementary step, make himself available
to the employment services of the Member State in which he
pursued his last activity as an employed or self-employed
person.

in the Member State of

services

An unemployed person, other than a frontier worker, who
does not return to his Member State of residence, shall make
himself available to the employment services in the Member
State to whose legislation he was last subject.

legislation of that Member State. If he chooses also to register
as a person seeking work in the Member State in which he
pursued his last activity as an employed or self-employed
person, he shall comply with the obligations applicable in
that State.

4.
The implementation of paragraph 2, second sentence, and
of paragraph 3, second sentence, as well as the arrangements
cooperation and mutual
exchanges of
for
assistance between the
the
and services of
institutions
Member State of residence and the Member State in which
he pursued his last occupation, shall be laid down in the
Implementing Regulation.

information,

5. (a) The unemployed person referred to in the first and
second sentences of paragraph 2 shall receive benefits
in accordance with the legislation of the Member State
of residence as if he had been subject to that legislation
during his last activity as an employed or self-employed
person. Those benefits shall be provided by the insti-
tution of the place of residence.

the expense of

(b) However, a worker other than a frontier worker who
has been provided benefits at
the
competent institution of the Member State to whose
legislation he was last subject, shall firstly receive, on
his return to the Member State of residence, benefits
in accordance with Article 64, receipt of the benefits
in accordance with (a) being suspended for the period
during which he receives benefits under the legislation
to which he was last subject.

6.
The benefits provided by the institution of the place of
residence under paragraph 5 shall continue to be at its own
expense. However, subject to paragraph 7, the competent insti-
tution of the Member State to whose legislation he was last
subject shall reimburse to the institution of
the place of
residence the full amount of
the benefits provided by the
latter institution during the first three months. The amount
of the reimbursement during this period may not be higher
than the amount payable, in the case of unemployment, under
the legislation of the competent Member State.
In the case
the period during which
referred to in paragraph 5(b),
benefits are provided under Article 64 shall be deducted
from the period referred to in the second sentence of this
paragraph. The arrangements for reimbursement shall be laid
down in the Implementing Regulation.

However,

7.
the period of reimbursement referred to in
paragraph 6 shall be extended to five months when the
person concerned has, during the preceding 24 months,
completed periods of employment or self-employment of at
least 12 months in the Member State to whose legislation he
was last subject, where such periods would qualify for the
purposes of establishing entitlement to unemployment benefits.

3.
The unemployed person referred to in the first sentence
of paragraph 2 shall register as a person seeking work with the
competent employment services of the Member State in which
he resides, shall be subject to the control procedure organised
there and shall adhere to the conditions laid down under the

8.
For the purposes of paragraphs 6 and 7, two or more
Member States, or their competent authorities, may provide for
other methods of reimbursement or waive all reimbursement
between the institutions falling under their jurisdiction.

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CHAPTER 7

Pre-retirement benefits

Article 66

Benefits

of insurance or residence under the conflicting legis-
lations;

(iii) in the case of rights available on the basis of residence:

the place of residence of the children.

the

applicable

When
to
pre-retirement benefits conditional on the completion of
periods of insurance, of employment or of self-employment,
Article 6 shall not apply.

legislation makes

right

the

CHAPTER 8

Family benefits

Article 67

Members of the family residing in another Member State

A person shall be entitled to family benefits in accordance with
the legislation of the competent Member State, including for
his family members residing in another Member State, as if
they were residing in the former Member State. However, a
pensioner shall be entitled to family benefits in accordance
with the legislation of the Member State competent for his
pension.

Article 68

Priority rules in the event of overlapping

1. Where, during the same period and for the same family
members, benefits are provided for under the legislation of
more than one Member State the following priority rules
shall apply:

(a)

in the case of benefits payable by more than one Member
State on different bases, the order of priority shall be as
follows: firstly rights available on the basis of an activity as
an employed or self-employed person, secondly rights
available on the basis of receipt of a pension and finally
rights obtained on the basis of residence;

(b) in the case of benefits payable by more than one Member
State on the same basis, the order of priority shall be
established by referring to the following subsidiary criteria:

(i) in the case of rights available on the basis of an
activity as an employed or self-employed person: the
place of residence of the children, provided that there
is such activity, and additionally, where appropriate,
the highest amount of the benefits provided for by
the conflicting legislations. In the latter case, the cost
of benefits shall be shared in accordance with criteria
laid down in the Implementing Regulation;

priority

in accordance with

2.
In the case of overlapping entitlements, family benefits
shall be provided in accordance with the legislation designated
as having
paragraph 1.
Entitlements to family benefits by virtue of other conflicting
legislation or legislations shall be suspended up to the amount
legislation and a differential
provided for by the
the sum
supplement
which exceeds
such a differential
supplement does not need to be provided for children
residing in another Member State, when entitlement to the
benefit in question is based on residence only.

this amount. However,

shall be provided,

if necessary,

first

for

If, under Article 67, an application for family benefits is
3.
submitted to the competent
institution of a Member State
whose legislation is applicable, but not by priority right in
accordance with paragraphs 1 and 2 of this Article:

(a) that institution shall forward the application without delay
to the competent institution of the Member State whose
legislation is applicable by priority,
inform the person
concerned, and, without prejudice to the provisions of
the Implementing Regulation concerning the provisional
award of benefits, provide,
the differential
supplement mentioned in paragraph 2;

if necessary,

(b) the competent institution of the Member State whose legis-
lation is applicable by priority shall deal with this
application as though it were submitted directly to itself,
and the date on which such an application was submitted
to the first institution shall be considered as the date of its
claim to the institution with priority.

Article 69

Additional provisions

1.
If, under the legislation designated by virtue of Articles
67 and 68, no right is acquired to the payment of additional or
special family benefits for orphans, such benefits shall be paid
by default, and in addition to the other family benefits acquired
in accordance with the abovementioned legislation, by the
legislation of
the Member State to which the deceased
worker was subject for the longest period of time, insofar as
the right was acquired under that legislation. If no right was
the
acquired under
acquisition of such right under the legislations of the other
Member States shall be examined and benefits provided in
decreasing order of
insurance or
residence completed under the legislation of those Member
States.

the length of periods of

legislation,

conditions

that

the

for

(ii) in the case of rights available on the basis of receipt of
pensions:
the children,
provided that a pension is payable under its legislation,
and additionally, where appropriate, the longest period

the place of

residence of

2.
Benefits paid in the form of pensions or supplements to
pensions shall be provided and calculated in accordance with
Chapter 5.

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CHAPTER 9

Special non-contributory cash benefits

(ii) solely specific protection for the disabled, closely linked
to the said person's social environment in the Member
State concerned,

Article 70

General provision

and

1.
This Article shall apply to special non-contributory cash
benefits which are provided under legislation which, because of
its personal scope, objectives and/or conditions for entitlement
has characteristics both of the social security legislation referred
to in Article 3(1) and of social assistance.

For

2.
Chapter,
non-contributory cash benefits’ means those which:

purposes

this

the

of

‘special

(b) where the financing exclusively derives from compulsory
taxation intended to cover general public expenditure and
the conditions for providing and for calculating the benefits
are not dependent on any contribution in respect of the
beneficiary. However, benefits provided to supplement a
contributory benefit
considered to be
shall not be
contributory benefits for this reason alone,

(a) are intended to provide either:

and

(c) are listed in Annex X.

(i) supplementary, substitute or ancillary cover against the
risks covered by the branches of social security referred
to in Article 3(1), and which guarantee the persons
concerned a minimum subsistence income having
regard to the economic and social situation in the
Member State concerned;

or

Article 7 and the other Chapters of this Title shall not
3.
apply to the benefits referred to in paragraph 2 of this Article.

4.
The benefits referred to in paragraph 2 shall be provided
exclusively in the Member State in which the persons
concerned reside,
in accordance with its legislation. Such
benefits shall be provided by and at the expense of the insti-
tution of the place of residence.

TITLE IV

ADMINISTRATIVE COMMISSION AND ADVISORY COMMITTEE

Article 71

Composition and working methods of the Administrative
Commission

The Administrative Commission for the Coordination of
1.
Social Security Systems (hereinafter called ‘the Administrative
Commission’) attached to the Commission of the European
Communities shall be made up of a government representative
from each of the Member States, assisted, where necessary, by
expert advisers. A representative of the Commission of the
European Communities
the
Administrative Commission in an advisory capacity.

shall attend the meetings of

The rules of

2.
drawn up by mutual agreement among its members.

the Administrative Commission shall be

Secretarial services for the Administrative Commission
the European

3.
shall be provided by the Commission of
Communities.

Article 72

Tasks of the Administrative Commission

The Administrative Commission shall:

(a) deal with all administrative questions and questions of
interpretation arising from the provisions of this Regulation
or those of the Implementing Regulation, or from any
agreement concluded or arrangement made thereunder,
without prejudice to the right of the authorities, institutions
and persons concerned to have recourse to the procedures
and tribunals provided for by the legislation of the Member
States, by this Regulation or by the Treaty;

Decisions on questions of interpretation referred to in Article
72(a) shall be adopted under the voting rules established by the
Treaty and shall be given the necessary publicity.

(b) facilitate the uniform application of Community law,
especially by promoting exchange of experience and best
administrative practices;

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(c)

foster and develop cooperation between Member States and
their institutions in social security matters in order, inter
alia, to take into account particular questions regarding
certain categories of persons;
realisation of
actions of crossborder cooperation activities in the area
of the coordination of social security systems;

facilitate

(b) submit to the Administrative Commission the reports and

reasoned opinions referred to in paragraph 1;

(c) carry out all other tasks and studies on matters referred to

it by the Administrative Commission;

for

to facilitate the free movement of persons,

(d) encourage as far as possible the use of new technologies in
in
order
particular by modernising procedures
exchanging
information and adapting the information flow between
institutions for the purposes of exchange by electronic
means,
the development of data
taking account of
the Administrative
processing in each Member State;
Commission shall adopt the common structural rules for
data processing services, in particular on security and the
use of standards, and it shall lay down provisions for the
operation of the common part of those services;

(e) undertake any other function falling within its competence
under this Regulation and the Implementing Regulation or
any agreement or arrangement concluded thereunder;

(f) make any relevant proposals to the Commission of the
European Communities concerning the coordination of
social security schemes, with a view to improving and
modernising
drafting
subsequent Regulations or by means of other instruments
provided for by the Treaty;

Community

‘acquis’

the

by

(g) establish the factors to be taken into account for drawing
up accounts relating to the costs to be borne by the insti-
tutions of the Member States under this Regulation and to
adopt
the annual accounts between those institutions,
based on the report of the Audit Board referred to in
Article 74.

Article 73

Technical Commission for Data Processing

A Technical Commission for Data Processing (hereinafter
1.
called the ‘Technical Commission’) shall be attached to the
Administrative Commission. The Technical Commission shall
propose to the Administrative Commission common archi-
tecture rules for the operation of data-processing services, in
particular on security and the use of standards; it shall deliver
reports and a reasoned opinion before decisions are taken by
the Administrative Commission pursuant to Article 72(d). The
composition and the working methods of
the Technical
Commission shall be determined by the Administrative
Commission.

(d) ensure the management of Community pilot projects using
the Community part,

data-processing services and,
operational systems using data-processing services.

for

Article 74

Audit Board

1.
An Audit Board shall be attached to the Administrative
Commission. The composition and working methods of the
Audit Board shall be determined by the Administrative
Commission.

The Audit Board shall:

(a) verify the method of determining and calculating the

annual average costs presented by Member States;

(b) collect the necessary data and carry out the calculations
required for establishing the annual statement of claims
of each Member State;

(c) give the Administrative Commission periodic accounts of
the results of the implementation of this Regulation and of
the Implementing Regulation, in particular as regards the
financial aspect;

(d) provide the data and reports necessary for decisions to be
taken by the Administrative Commission under Article
72(g);

(e) make any relevant suggestions it may have to the Adminis-
trative Commission, including those concerning this Regu-
lation, in connection with subparagraphs (a), (b) and (c);

(f) carry out all work, studies or assignments on matters

referred to it by the Administrative Commission.

Article 75

Advisory Committee for

the Coordination of Social

Security Systems

An Advisory Committee for the Coordination of Social
‘Advisory
from each

to as
is hereby established, comprising,

(hereinafter

Systems

referred

1.
Security
Committee’)
Member State:

2.

To this end the Technical Commission shall:

(a) one government representative;

(a) gather

together
the

the relevant
studies

technical documents and
and other work required to

undertake
accomplish its tasks;

(b) one representative from the trade unions;

(c) one representative from the employers' organisations.

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For each of
member shall be appointed for each Member State.

the categories referred to above, an alternate

The members
the Advisory
and alternate members of
Committee shall be appointed by the Council. The Advisory
Committee shall be chaired by a representative of
the
Commission of
the European Communities. The Advisory
Committee shall draw up its rules of procedure.

arising

(a) to examine general questions or questions of principle and
the
problems
from the
Community provisions on the coordination of
social
security systems, especially regarding certain categories of
persons;

implementation of

The Advisory Committee shall be empowered, at

2.
request of
the Administrative Commission or on its own initiative:

the
the European Communities,

the Commission of

(b) to formulate opinions on such matters for the Adminis-
trative Commission and proposals for any revisions of
the said provisions.

TITLE V

MISCELLANEOUS PROVISIONS

Article 76

Cooperation

The competent authorities of the Member States shall

1.
communicate to each other all information regarding:

(a) measures taken to implement this Regulation;

(b) changes in their legislation which may affect the implemen-

tation of this Regulation.

2.
For the purposes of this Regulation, the authorities and
institutions of the Member States shall lend one another their
good offices and act as though implementing their own legis-
lation. The administrative assistance given by the said auth-
orities and institutions shall, as a rule, be free of charge.
However, the Administrative Commission shall establish the
nature of reimbursable expenses and the limits above which
their reimbursement is due.

3.
The authorities and institutions of the Member States
this Regulation, communicate
may,
for
directly with one another and with the persons involved or
their representatives.

the purposes of

The institutions and persons covered by this Regulation
4.
shall have a duty of mutual information and cooperation to
ensure the correct implementation of this Regulation.

The institutions,
in accordance with the principle of good
administration, shall respond to all queries within a reasonable
period of time and shall in this connection provide the persons
concerned with any information required for exercising the
rights conferred on them by this Regulation.

The persons concerned must inform the institutions of the
competent Member State and of
the Member State of
residence as soon as possible of any change in their personal
or family situation which affects their right to benefits under
this Regulation.

5.
Failure to respect the obligation of information referred
to in the third subparagraph of paragraph 4 may result in the
application of proportionate measures in accordance with
national law. Nevertheless, these measures shall be equivalent
to those applicable to similar situations under domestic law
and shall not make it impossible or excessively difficult in
practice for claimants to exercise the rights conferred on
them by this Regulation.

In the event of difficulties

in the interpretation or
6.
this Regulation which could jeopardise the
application of
the institution of
the
rights of a person covered by it,
the Member State of
competent Member State or of
the insti-
the person concerned shall contact
residence of
tution(s) of
If a solution
the Member State(s) concerned.
cannot be found within a reasonable period, the authorities
concerned may call on the Administrative Commission to
intervene.

7.
The authorities, institutions and tribunals of one Member
State may not reject applications or other documents submitted
to them on the grounds that they are written in an official
language of another Member State, recognised as an official
language of the Community institutions in accordance with
Article 290 of the Treaty.

Article 77

Protection of personal data

1. Where, under this Regulation or under the Implementing
Regulation, the authorities or institutions of a Member State
communicate personal data to the authorities or institutions of
another Member State, such communication shall be subject to
the data protection legislation of the Member State transmitting
them. Any communication from the authority or institution of
the receiving Member State as well as the storage, alteration
and destruction of the data provided by that Member State
shall be subject
the
receiving Member State.

to the data protection legislation of

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Data required for the application of this Regulation and
2.
the Implementing Regulation shall be transmitted by one
Member State to another Member State in accordance with
Community provisions on the protection of natural persons
with regard to the processing and free movement of personal
data.

Article 78

Data processing

1. Member States shall progressively use new technologies
for the exchange, access and processing of the data required to
apply this Regulation and the Implementing Regulation. The
Commission of
lend its
the European Communities shall
support
to activities of common interest as soon as the
Member States have established such data-processing services.

2.
Each Member State shall be responsible for managing its
own part of the data-processing services in accordance with the
Community provisions on the protection of natural persons
with regard to the processing and the free movement of
personal data.

3.
An electronic document sent, or issued by, an institution
in conformity with this Regulation and the Implementing
Regulation may not be rejected by any authority or institution
of another Member State on the grounds that it was received
by electronic means, once the receiving institution has declared
that it can receive electronic documents. Reproduction and
recording of such documents shall be presumed to be a
correct and accurate reproduction of the original document
or representation of the information it relates to, unless there
is proof to the contrary.

An electronic document shall be considered valid if the
4.
computer system on which the document is recorded contains
the safeguards necessary in order to prevent any alteration,
disclosure or unauthorised access to the recording. It shall at
any time be possible to reproduce the recorded information in
an immediately readable form. When an electronic document is
transferred from one social security institution to another,
appropriate security measures shall be taken in accordance
with the Community provisions on the protection of natural
persons with regard to the processing and the free movement
of personal data.

Article 79

Funding of activities in the social security field

In connection with this Regulation and the Implementing
Regulation,
the European Communities
may fund in full or in part:

the Commission of

(a) activities aimed at

information
between the social security authorities and institutions of

improving exchanges of

the Member States, particularly the electronic exchange of
data;

(b) any other activity aimed at providing information to the
persons covered by this Regulation and their represen-
tatives about the rights and obligations deriving from this
Regulation, using the most appropriate means.

Article 80

Exemptions

1.
Any exemption from or reduction of taxes, stamp duty,
notarial or registration fees provided for in the legislation of
one Member State in respect of certificates or documents
required to be produced in application of the legislation of
that Member State shall be extended to similar certificates or
documents required to be produced in application of the legis-
lation of another Member State or of this Regulation.

All statements, documents and certificates of any kind
2.
this
whatsoever required to be produced in application of
Regulation shall be exempt from authentication by diplomatic
or consular authorities.

Article 81

Claims, declarations or appeals

it

institution, or

that Member State shall be admissible if

Any claim, declaration or appeal which should have been
submitted,
in application of the legislation of one Member
State, within a specified period to an authority, institution or
tribunal of
is
submitted within the same period to a corresponding authority,
institution or tribunal of another Member State. In such a case
the authority,
receiving the claim,
declaration or appeal shall forward it without delay to the
competent authority,
the former
Member State either directly or through the competent auth-
orities of the Member States concerned. The date on which
such claims, declarations or appeals were submitted to the
authority, institution or tribunal of the second Member State
shall be considered as the date of their submission to the
competent authority, institution or tribunal.

institution or tribunal of

tribunal

Article 82

Medical examinations

Medical examinations provided for by the legislation of one
the
Member State may be carried out at
competent institution, in another Member State, by the insti-
tution of the place of residence or stay of the claimant or the
person entitled to benefits, under the conditions laid down in
the Implementing Regulation or agreed between the competent
authorities of the Member States concerned.

the request of

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Article 83

Implementation of legislation

(b) where the institution responsible for providing benefits has
a direct right against the third party, each Member State
shall recognise such rights.

Special provisions for implementing the legislation of certain
Member States are referred to in Annex XI.

Article 84

Collection of contributions and recovery of benefits

1.
Collection of contributions due to an institution of one
Member State and recovery of benefits provided by the insti-
tution of one Member State but not due may be effected in
another Member State in accordance with the procedures and
with the guarantees and privileges applicable to the collection
of contributions due to the corresponding institution of the
latter Member State and the recovery of benefits provided by
it but not due.

2.
Enforceable decisions of the judicial and administrative
authorities relating to the collection of contributions, interest
and any other charges or to the recovery of benefits provided
but not due under the legislation of one Member State shall be
recognised and enforced at the request of the competent insti-
tution in another Member State within the limits and in
accordance with the procedures laid down by the legislation
and any other procedures applicable to similar decisions of that
latter Member
shall be declared
enforceable in that Member State insofar as the legislation
and any other procedures of that Member State so require.

State. Such decisions

bankruptcy

Claims of an institution of one Member State shall

in
3.
in
or
enforcement,
another Member State enjoy the same privileges as the legis-
lation of that latter Member State accords to claims of the same
kind.

proceedings

settlement

The procedure for implementing this Article,

4.
including
costs reimbursement, shall be governed by the Implementing
Regulation or, where necessary and as a complementary
measure, by means of agreements between Member States.

Article 85

Rights of institutions

1.
If a person receives benefits under the legislation of one
Member State in respect of an injury resulting from events
occurring in another Member State, any rights of the insti-
tution responsible for providing benefits against a third party
liable to provide compensation for the injury shall be governed
by the following rules:

2.
If a person receives benefits under the legislation of one
Member State in respect of an injury resulting from events
occurring in another Member State,
the
said legislation which determine the cases in which the civil
liability of employers or of their employees is to be excluded
shall apply with regard to the said person or to the competent
institution.

the provisions of

Paragraph 1 shall also apply to any rights of the institution
responsible for providing benefits against employers or their
employees in cases where their liability is not excluded.

3. Where,
in accordance with Article 35(3) and/or Article
41(2), two or more Member States or their competent auth-
orities have concluded an agreement to waive reimbursement
between institutions under their jurisdiction, or, where reim-
bursement does not depend on the amount of benefits actually
provided, any rights arising against a liable third party shall be
governed by the following rules:

(a) where the institution of the Member State of residence or
stay accords benefits to a person in respect of an injury
sustained in its territory,
in accordance
that
the legislation it applies, shall
with the provisions of
exercise the right to subrogation or direct action against
the third party liable to provide compensation for the
injury;

institution,

(b) for the application of (a):

(i) the person receiving benefits shall be deemed to be
insured with the institution of the place of residence
or stay, and

(ii) that institution shall be deemed to be the institution

responsible for providing benefits;

(c) Paragraphs 1 and 2 shall remain applicable in respect of
any benefits not covered by the waiver agreement or a
reimbursement which does not depend on the amount of
benefits actually provided.

Article 86

Bilateral agreements

(a) where the institution responsible for providing benefits is,
under the legislation it applies, subrogated to the rights
which the beneficiary has against the third party, such
subrogation shall be recognised by each Member State;

As far as relations between, on the one hand, Luxembourg and,
on the other hand, France, Germany and Belgium are
concerned,
the period
the application and the duration of
referred to in Article 65(7) shall be subject to the conclusion
of bilateral agreements.

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TITLE VI

TRANSITIONAL AND FINAL PROVISIONS

Article 87

Transitional provisions

No rights shall be acquired under this Regulation for the

1.
period before its date of application.

of

employment,

Any period of

insurance and, where appropriate, any
2.
residence
period
completed under the legislation of a Member State prior to
the date of application of
this Regulation in the Member
State concerned shall be taken into consideration for the deter-
mination of rights acquired under this Regulation.

self-employment

or

this Regulation. The request shall be submitted within three
months after the date of application of this Regulation to the
competent institution of the Member State whose legislation is
applicable under this Regulation if the person concerned is to
be subject to the legislation of that Member State as of the date
of application of this Regulation. If the request is made after
the time limit indicated, the changeover shall take place on the
first day of the following month.

9.
Article 55 of this Regulation shall apply only to pensions
not subject to Article 46c of Regulation (EEC) No 1408/71 on
the date of application of this Regulation.

3.
Subject to paragraph 1, a right shall be acquired under
this Regulation even if it relates to a contingency arising before
its date of application in the Member State concerned.

10.
The provisions of the second sentences of Article 65(2)
and (3) shall be applicable to Luxembourg at the latest two
years after the date of application of this Regulation.

the person concerned shall, at

Any benefit which has not been awarded or which has
4.
the nationality or place of
been suspended by reason of
the request of
residence of
that person, be provided or resumed with effect
from the
date of application of this Regulation in the Member State
concerned, provided that the rights for which benefits were
previously provided have not given rise to a lump-sum
payment.

5.
The rights of a person to whom a pension was provided
prior to the date of application of this Regulation in a Member
State may, at the request of the person concerned be reviewed,
taking into account this Regulation.

6.
If a request referred to in paragraphs 4 or 5 is submitted
within two years from the date of application of this Regu-
lation in a Member State, the rights acquired under this Regu-
lation shall have effect from that date, and the legislation of
any Member State concerning the forfeiture or limitation of
rights may not be invoked against the persons concerned.

If a request referred to in paragraphs 4 or 5 is submitted
7.
after the expiry of the two-year period following the date of
application of this Regulation in the Member State concerned,
rights not forfeited or not time-barred shall have effect from
the date on which the request was submitted, subject to any
the legislation of any
more favourable provisions under
Member State.

If, as a result of this Regulation, a person is subject to the
8.
legislation of a Member State other than the one determined in
accordance with Title II of Regulation (EEC) No 1408/71, that
legislation shall continue to apply as long as the relevant
situation remains unchanged, unless the person concerned
requests that he be subject to the legislation applicable under

11. Member States shall ensure that appropriate information
is provided regarding the changes in rights and obligations
introduced by this Regulation and the Implementing Regu-
lation.

Article 88

Updating of the Annexes

The Annexes of this Regulation shall be revised periodically.

Article 89

Implementing Regulation

A further Regulation shall
implementing this Regulation.

lay down the procedure for

Article 90

Repeal

Council Regulation (EEC) No 1408/71 shall be repealed

1.
from the date of application of this Regulation.

However, Regulation (EEC) No 1408/71 shall remain in force
and shall continue to have legal effect for the purposes of:

(a) Council Regulation (EC) No 859/2003 of 14 May 2003
extending the provisions of Regulation (EEC) No 1408/71
and Regulation (EEC) No 574/72 to nationals of
third
countries who are not already covered by those provisions
solely on the ground of their nationality (1), for as long as
that Regulation has not been repealed or modified;

(1) OJ L 124, 20.5.2003, p. 1.

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(b) Council Regulation (EEC) No 1661/85 of 13 June 1985
laying down the technical adaptations to the Community
rules on Social Security for migrant workers with regard to
Greenland (1), for as long as that Regulation has not been
repealed or modified;

References to Regulation (EEC) No 1408/71 in Council
2.
Directive 98/49/EC of 29 June 1998 on safeguarding the
supplementary pension rights of employed and self-employed
persons moving within the Community (4) are to be read as
referring to this Regulation.

(c) the Agreement on the European Economic Area (2) and the
Agreement between the European Community and its
Member States, of the one part, and the Swiss Confed-
the other part, on the free movement of
eration, of
persons (3)
agreements which contain a
and other
reference to Regulation (EEC) No 1408/71, for as long as
those agreements have not been modified in the light of
this Regulation.

Article 91

Entry into force

This Regulation shall enter into force on the twentieth day after
its publication in the Official Journal of the European Union.

It shall apply from the date of entry into force of
Implementing Regulation.

the

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

Done at,

For the European Parliament

The President

For the Council

The President

(1) OJ L 160, 20.6.1985, p. 7.
(2) OJ L 1, 3.1.1994, p. 1.
(3) OJ L 114, 30.4.2002, p. 6. Agreement as last amended by Decision
No 2/2003 of the EU-Swiss Committee (OJ L 187, 26.7.2003,
p. 55).

(4) OJ L 209, 25.7.1998, p. 46.

C 79 E/44

EN

Official Journal of the European Union

30.3.2004

ANNEX I

Advances of maintenance payments and special childbirth and adoption allowances

(Article 1(z))

I. Advances of maintenance payments

A. BELGIUM

Advances of maintenance allowances under the law of 21 February 2003 creating a maintenance payments agency
within the federal public service, Finance Department

B. DENMARK

Advance payment of child support laid down in the Act on Child Benefits

Advance payment of child support consolidated by Law No 765 of 11 September 2002

C. GERMANY

Advances of maintenance payments under the German law on advances of maintenance payments (Unterhaltsvor-
schussgesetz) of 23 July 1979

D. FRANCE

Family support allowance paid to a child one of whose parents or both of whose parents are in default or are unable
to meet their maintenance obligations or the payment of a maintenance allowance laid down by a court decision

E. AUSTRIA

Advances of maintenance payments under the Federal Law on the grant of advances of child maintenance (Unter-
haltsvorschussgesetz 1985 — UVG)

F. PORTUGAL

Advances of maintenance payments (Act No 75/98, 19 November, on the guarantee of maintenance for minors)

G. FINLAND
Maintenance allowance under the Security of Child Maintenance Act (671/1998)

H. SWEDEN

Maintenance allowance under the Maintenance Support Act (1996:1030)

II. Special childbirth and adoption allowances

A. BELGIUM

Childbirth allowance and adoption grant

B. SPAIN

Single payment birth grants

C. FRANCE
Birth or adoption grants as part of the ‘early childhood benefit’

D. LUXEMBOURG

Antenatal allowances

Childbirth allowances

E. FINLAND
Maternity package, maternity lump-sum grant and assistance in the form of a lump sum intended to offset the cost of
international adoption pursuant to the Maternity Grant Act

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ANNEX II

Provisions of conventions which remain in force and which, where applicable, are restricted to the persons
covered thereby

(Article 8(1))

The content of this Annex shall be determined by the European Parliament and by the Council in accordance with the
Treaty as soon as possible and at the latest by the date of application of this Regulation referred to in Article 91.

ANNEX III

Restriction of rights to benefits in kind for members of the family of a frontier worker

(Article 18(2))

DENMARK

SPAIN

IRELAND

NETHERLANDS

FINLAND

SWEDEN

UNITED KINGDOM

BELGIUM

GERMANY

GREECE

SPAIN

FRANCE

ITALY

LUXEMBOURG

AUSTRIA

SWEDEN

ANNEX IV

More rights for pensioners returning to the competent Member State

(Article 27(2))

C 79 E/46

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Official Journal of the European Union

30.3.2004

ANNEX V

More rights for former frontier workers who return to their previous Member State of activity as an employed
or self-employed person (applicable only if the Member State in which the competent institution responsible
for the costs of the benefits in kind provided to the pensioner in his Member State of residence is situated also
appears on the list)

(Article 28(2))

BELGIUM

GERMANY

SPAIN

FRANCE

LUXEMBOURG

AUSTRIA

PORTUGAL

ANNEX VI

Identification of type A legislation which should be subject to special coordination

(Article 44(1))

A. GREECE

Legislation relating to the agricultural insurance scheme (OGA), under Law No 4169/1961

B. IRELAND

Part II, Chapter 15 of the Social Welfare (Consolidation) Act, 1993

C. FINLAND

Invalidity pensions determined according to the National Pensions Act of 8 June 1956 and awarded under the
transitional rules of the National Pensions Act (547/93)

National pensions to persons who are disabled or become disabled at an early age (the National Pensions Act (547/93))

D. SWEDEN

Income-related sickness benefit and activity compensation (Act 1962:381 as amended by Act 2001:489)

E. UNITED KINGDOM

(a) Great Britain

Sections 30A(5), 40, 41 and 68 of the Contributions and Benefits Act 1992.

(b) Northern Ireland

Sections 30A(5), 40, 41 and 68 of the Contributions and Benefits (Northern Ireland) Act 1992.

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Concordance between the legislations of Member States on conditions relating to the degree of invalidity

ANNEX VII

(Article 46(3) of the Regulation)

BELGIUM

Member State

Schemes administered by insti-
tutions of Member States which
have taken a decision recognising
the degree of invalidity

Schemes administered by Belgian institutions on which the decision is binding in cases of concordance

Miners' scheme

General scheme

General invalidity

Occupational
invalidity

Mariners' scheme

Ossom

FRANCE

1. General scheme:

— Group III
attendance)

— Group II

— Group I

(constant

Concordance

Concordance

Concordance

Concordance

No concordance

Concordance

Concordance

Concordance

Concordance

No concordance

Concordance

Concordance

Concordance

Concordance

No concordance

2. Agricultural scheme

— Total, general
invalidity

Concordance

Concordance

Concordance

Concordance

No concordance

— Two-thirds general

Concordance

Concordance

Concordance

Concordance

No concordance

invalidity

— Constant attendance

Concordance

Concordance

Concordance

Concordance

No concordance

3. Miners' scheme:

— Partial, general
invalidity

Concordance

Concordance

Concordance

Concordance

No concordance

— Constant attendance

Concordance

Concordance

Concordance

Concordance

No concordance

— Occupational
invalidity

4. Mariners' scheme:

No concordance

No concordance

Concordance

No concordance No concordance

— General invalidity

Concordance

Concordance

Concordance

Concordance

No concordance

— Constant attendance

Concordance

Concordance

Concordance

Concordance

No concordance

— Occupational
invalidity

ITALY

1. General scheme:

No concordance

No concordance No concordance No concordance No concordance

— Invalidity — manual

No concordance

Concordance

Concordance

Concordance

No concordance

workers

— Invalidity — clerical

No concordance

Concordance

Concordance

Concordance

No concordance

staff

2. Mariners' scheme:

— Unfitness for
seafaring

No concordance

No concordance No concordance No concordance No concordance

LUXEMBOURG (1) Workers'

invalidity —

Concordance

Concordance

Concordance

Concordance

No concordance

manual workers

Invalidity — clerical staff

Concordance

Concordance

Concordance

Concordance

No concordance

(1) Entries concerning concordance between Luxembourg and France or Belgium will be the subject of technical re-examination taking account of the changes which have

been made to national legislation in Luxembourg.

FRANCE

Member State

Schemes administered by
institutions of Member
States which have taken a
decision recognising the
degree of invalidity

Schemes administered by French institutions on which the decision is binding in cases of concordances

General scheme

Agricultural scheme

Miners' scheme

Mariners' scheme

Group I

Group II

Group III
Constant
attendance

2/3 Invalidity Total invalidity

Constant
attendance

2/3 General
invalidity

Constant
attendance

Occupational
invalidity

2/3 General
invalidity

Total
occupational
invalidity

Constant
attendance

BELGIUM

1. General scheme

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

2. Miners' scheme

— partial

general

invalidity

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

— occupational
invalidity

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance (2)

3. Mariners' scheme

Concor-
dance (1)

No concor-
dance

No concor-
dance

Concor-
dance (1)

No concor-
dance

No concor-
dance

Concor-
dance (1)

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

ITALY

1. General scheme

— invalidity —
manual
workers

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

— invalidity —
clerical staff

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

2. Mariners' scheme

— unfitness for
seafaring

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

LUXEM-
BOURG (3)

Invalidity — manual
workers

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

Concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

Invalidity — clerical
staff

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

No concor-
dance

(1) In so far as the invalidity recognised by the Belgian institutions is general invalidity.
(2) Only if the Belgian institution has recognised that the worker is unfit for work underground or at ground level.
(3) Entries concerning concordance between Luxembourg and France or Belgium will be the subject of technical re-examination taking account of the changes which have been made to national

legislation in Luxembourg.

C

7
9
E
/
4
8

E
N

O

f
f
i
c
i
a
l

J
o
u
r
n
a
l

o
f

t
h
e

E
u
r
o
p
e
a
n
U
n
o
n

i

.

.

3
0
3
2
0
0
4

30.3.2004

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Official Journal of the European Union

C 79 E/49

ITALY

Member State

Schemes administered by institutions of
Member States which have taken a
decision recognising the degree of
invalidity

Schemes administered by Italian institutions on which the decision is
binding in cases of concordance

General scheme

Manual workers

Clerical staff

Mariners
Unfit for navigation

BELGIUM

1. General scheme

No concordance

No concordance

No concordance

2. Miners' scheme

— partial general invalidity

Concordance

Concordance

No concordance

— occupational invalidity

No concordance

No concordance

No concordance

3. Mariners' scheme

No concordance

No concordance

No concordance

FRANCE

1. General scheme

— Group III (constant

Concordance

Concordance

No concordance

attendance)

— Group II

— Group I

2. Agricultural scheme

Concordance

Concordance

No concordance

Concordance

Concordance

No concordance

— total general invalidity

Concordance

Concordance

No concordance

— partial general invalidity

Concordance

Concordance

No concordance

— constant attendance

Concordance

Concordance

No concordance

3. Miners' scheme

— partial general invalidity

Concordance

Concordance

No concordance

— constant attendance

Concordance

Concordance

No concordance

— occupational invalidity

No concordance

No concordance

No concordance

4. Mariners' scheme

— partial general invalidity

No concordance

No concordance

No concordance

— constant attendance

No concordance

No concordance

No concordance

— occupational invalidity

C 79 E/50

EN

Official Journal of the European Union

30.3.2004

LUXEMBOURG (1)

Member State

Schemes administered by institutions of Member
States which have taken a decision recognising
the degree of invalidity

Schemes administered by Luxembourg institutions on
which the decision is binding in cases of concordance

Invalidity — manual
workers

Invalidity — clerical staff

BELGIUM

1. General scheme

Concordance

Concordance

2. Miners' scheme:

— partial general invalidity

No concordance

No concordance

— occupational invalidity

No concordance

No concordance

3. Mariners' scheme

Concordance (1)

No concordance (1)

FRANCE

1. General scheme:

— Group III (constant attendance)

Concordance

— Group II

— Group I

2. Agricultural scheme:

Concordance

Concordance

— total general invalidity

Concordance

— two-thirds general invalidity

Concordance

— constant attendance

Concordance

3. Miners' scheme:

— two-thirds general invalidity

Concordance

— constant attendance

Concordance

Concordance

Concordance

Concordance

Concordance

Concordance

Concordance

Concordance

Concordance

— total general invalidity

No concordance

No concordance

4. Mariners' scheme:

— partial general invalidity

— constant attendance

Concordance

Concordance

Concordance

Concordance

— occupational invalidity

No concordance

No concordance

(1) In so far as the invalidity recognised by the Belgian institution is general invalidity.

(1) Entries concerning concordance between Luxembourg and France or Belgium will be the subject of technical re-examination taking

account of the changes which have been made to national legislation in Luxembourg.

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ANNEX VIII

Cases in which the independent benefit is equal to or higher than the pro-rata benefit

(Article 52(4))

A. DENMARK

All applications for pensions referred to in the law on social pensions, except for pensions mentioned in Annex IX

B. FRANCE

All applications for pension benefits or survivor's benefits under supplementary retirement schemes for employees or
self-employed workers, with the exception of applications for old-age or widow's pensions under the supplementary
retirement scheme for professional cabin crew in civil aviation

C. IRELAND

All applications for retirement pensions, old-age (contributory) pensions, widow's (contributory) pension and widower's
(contributory) pension

D. NETHERLANDS

Where a person is entitled to a pension on the basis of the Netherlands' law on general old-age insurance (AOW)

E. PORTUGAL

Invalidity, old-age and survivors' pension claims, except for the cases where the total periods of insurance completed
under the legislation of more than one Member State are equal to or longer than 21 calendar years, the national periods
of insurance are equal to, or less than, 20 years, and the calculation is made under Article 11 of Decree-Law
No 35/2002, 19 February, which defines the rules for the determination of the pension amount. In such cases, by
applying more favourable pension formation rates, the amount resulting from the pro-rata calculation may be higher
than that resulting from the independent calculation

F. SWEDEN

Earnings-related old-age pension (Act 1998:674), earnings-related survivor's pension in the form of adjustment pension
and child's pension allowance when the death occurred before 1 January 2003 and widow's pension (Act 2000:461 and
Act 2000:462)

G. UNITED KINGDOM

All applications for retirement pension, widows' and bereavement benefits determined pursuant to the provisions of
Title III, Chapter 5 of the Regulation, with the exception of those for which:

(a) during a tax year beginning on or after 6 April 1975:

(i) the party concerned had completed periods of insurance, employment or residence under the legislation of the

United Kingdom and another Member State; and

(ii) one (or more) of the tax years referred to in (i) was not considered a qualifying year within the meaning of the

legislation of the United Kingdom;

(b) the periods of insurance completed under the legislation in force in the United Kingdom for the periods prior to
5 July 1948 would be taken into account for the purposes of Article 52(1)(b) of the Regulation by application of the
periods of insurance, employment or residence under the legislation of another Member State

C 79 E/52

EN

Official Journal of the European Union

30.3.2004

ANNEX IX

Benefits and agreements which allow the application of Article 54

I. Benefits referred to in Article 54(2)(a) of the Regulation, the amount of which is independent of the length

of periods of insurance or residence completed

A. BELGIUM

Benefits relating to the general invalidity scheme, the special invalidity scheme for miners and the special scheme for
merchant navy mariners

Benefits on insurance for self-employed persons against incapacity to work

Benefits relating to invalidity in the overseas social
employees of the Belgian Congo and Ruanda-Urundi

insurance scheme and the invalidity scheme for former

B. DENMARK

The full Danish national old-age pension acquired after ten years' residence by persons who will have been awarded
a pension by 1 October 1989

C. GREECE

Benefits under Law No 4169/1961 relating to the agricultural insurance scheme (OGA)

D. SPAIN

Survivors' pensions granted under the general and special schemes, with the exception of the Special Scheme for
Civil Servants

E. FRANCE

Invalidity pension under the general social security system or under the agricultural workers scheme

Widower's or widow's invalidity pension under the general social security system or under the agricultural workers
scheme where it is calculated on the basis of the deceased spouse's invalidity pension settled in accordance with
Article 52(1)(a)

F. IRELAND

Type A Invalidity Pension

G. NETHERLANDS

The law of 18 February 1966 on invalidity insurance for employees, as amended (WAO)

The law of 24 April 1997 on invalidity insurance for self-employed persons, as amended (WAZ)

The law of 21 December 1995 on general insurance for surviving dependants (ANW)

H. FINLAND

National pensions to persons who are born disabled or become disabled at an early age (National Pensions Act
547/93)

National pensions determined according to the National Pensions Act of 8 June 1956 and awarded under the
transitional rules of the National Pensions Act (547/93)

The additional amount of the child's pension in accordance with the Survivors Pension Act of 17 January 1969

I. SWEDEN

Earnings-related survivor's pension in the form of child's pension allowance and adjustment pension when the death
occurred on 1 January 2003 or later when the deceased was born in 1938 or later (Act 2000:461)

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II. Benefits referred to in Article 54(2)(b) of the Regulation, the amount of which is determined by reference
to a credited period deemed to have been completed between the date on which the risk materialised and a
later date

A. GERMANY

Invalidity and survivors' pensions, for which account is taken of a supplementary period

Old-age pensions, for which account is taken of a supplementary period already acquired

B. SPAIN

The pensions for retirement or retirement for permanent disability (invalidity) under the Special Scheme for Civil
Servants due under Title I of the consolidated text of the Law on State Pensioners if at the time of materialisation of
the risk the beneficiary was an active civil servant or treated as such; death and survivors' (widows'/widowers',
orphans' and parents') pensions due under Title I of the consolidated text of the Law on State Pensioners if at the
time of death the civil servant was active or treated as such

C. ITALY

Italian pensions for total incapacity for work (inabilità)

D. LUXEMBOURG

Invalidity and survivors' pensions

E. FINLAND

Employment pensions for which account is taken of future periods according to the national legislation

F. SWEDEN

Sickness benefit and activity compensation in the form of guarantee benefit (Act 1962:381)

Survivor's pension calculated on the basis of assumed insurance periods (Act 2000:461 and 2000:462)

Old-age pension in the form of guarantee pension calculated on the basis of assumed periods previously counted
(Act 1998:702)

III. Agreements referred to in Article 54(2)(b)(i) of the Regulation intended to prevent the same credited

period being taken into account two or more times:

The Social Security Agreement of 28 April 1997 between the Republic of Finland and the Federal Republic of
Germany

The Social Security Agreement of 10 November 2000 between the Republic of Finland and the Grand Duchy of
Luxembourg

Nordic Convention of 15 June 1992 on social security

C 79 E/54

EN

Official Journal of the European Union

30.3.2004

ANNEX X

Special non-contributory cash benefits

(Article 70(2)(c))

The content of this Annex shall be determined by the European Parliament and by the Council in accordance with the
Treaty as soon as possible and at the latest before the date of application of this Regulation as referred to in Article 91.

ANNEX XI

Special provisions for the application of the legislation of the Member States

(Article 51(3), 56(1) and 83)

The content of this Annex shall be determined by the European Parliament and by the Council in accordance with the
Treaty as soon as possible and at the latest before the date of application of this Regulation as referred to in Article 91.

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Official Journal of the European Union

C 79 E/55

STATEMENT OF THE COUNCIL'S REASONS

I. INTRODUCTION

On 6 January 1999, the Commission submitted to the Council a proposal for a European Parliament
and Council Regulation on the coordination of social security systems, on the basis of Articles 42 and
308 of the Treaty establishing the European Community (1).

The Economic and Social Committee delivered its Opinion on 27 January 2000 (2).

In view of the complexity of this file, the Council undertook its examination in two stages. During the
first two years, the Council held detailed discussions on the main questions raised by the proposed new
legal framework. On the basis of this work and of parameters setting out the main objectives to be
achieved, the redrafting process has continued since 2002.

During this process, the European Parliament has been regularly informed about ongoing work in the
Council, each successive Presidency having been invited to meet with the Rapporteur on an informal
basis.

As a result of this close cooperation, the European Parliament was in a position to include in its own
Resolution a large number of amendments which were already in line with the Council's position.

Acting in accordance with Article 251 of the Treaty, the European Parliament delivered its first reading
Opinion on 3 September 2003.

The Commission subsequently presented on 10 October 2003 its amended proposal,
accepted the majority of the amendments suggested by the European Parliament.

in which it

In accordance with Article 251(2) of the EC Treaty, the Council adopted its Common Position on
26 January 2004.

II. OBJECTIVE

The purpose of the Regulation is to replace the Community rules currently in force (3) on the coor-
dination of the national social security systems of the Member States.

These rules aim to protect the social security rights of insured persons moving within the Community,
with a view to removing obstacles to the free movement of persons.

Community provisions on the coordination of social security systems date back to the early years of
the EEC. The current Regulation (EEC) No 1408/71, has been amended and updated on numerous
occasions since, as it has had constantly to be adjusted to take into account not only new developments
at Community level, including judgements of the Court of Justice, but also changes in legislation at
national
level. Such factors have played their part in making the Community coordination rules
increasingly complex and lengthy.

While retaining the guiding principles and essential elements of
the current Regulation (EEC)
No 1408/71, the new Regulation will introduce a new legal framework through a streamlining of
its provisions and the broadening of its material and personal scope.

(1) OJ C 38, 12.2.1999, p. 10.
(2) OJ C 75, 15.3.2000, p. 29.
(3) 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.

C 79 E/56

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30.3.2004

The key principles of the current Regulation (EEC) No 1408/71, such as the assimilation of facts or
events, the aggregation of periods and the exportability of benefits have been maintained, while being
given improved visibility.

In addition, the principle that each person is subject to the legislation of one Member State only
enables this person to apply for social security benefits in a single Member State. This also facilitates
the work of the national administrative bodies.

Moreover, the competence for almost all social security benefits being conferred on the basis of the
place of activity of the person concerned, the link between the receipt of contributions and the
payment of benefits will be preserved.

Measures aimed at avoiding the overlapping of social security benefits acquired in one Member State
with other benefits of the same kind acquired in another Member State should considerably limit the
possibility of unfair advantages being derived from free movement within the Community, thus
allowing for full application of the equal treatment principle.

With the extension of the personal scope of the Regulation to all European Union citizens, in line with
the new concept of European citizenship established by the Treaties, a significant number of exceptions
and specific rules for certain categories of persons have become unnecessary, thus also contributing to
the overall objective of simplification.

As a whole, the new Regulation should therefore constitute a more consistent, operational and
up-to-date legal
instrument resulting in both the improvement of insured persons' social security
rights and the simplification of procedures.

III. ANALYSIS OF THE COMMON POSITION

1. European Parliament amendments

The European Parliament adopted 47 amendments to the Commission proposal.

40 of these 47 amendments were incorporated into the amended Commission proposal as they
stood, namely Nos 3-10, 12-19, 21-26, 28-32, 34, 35, 37, 39, 46-48, 50 and 52-56.

Amendments 11, 44 and 51 could also be accepted by the Commission in part.

Four other amendments were, however, not acceptable to the Commission, namely Nos 38, 40, 45
and 49.

2. Council's position on the European Parliament's amendments

The Council could accept in full 37 of the 43 amendments wholly or partly incorporated in the
Commission's amended proposal, namely Nos 3-11, 12-19, 21-26, 28-32, 34, 35, 37, 39, 44, 51,
52, 55 and 56.

The Council also accepted, subject to redrafting, the principle underlying amendment 46 regarding
the link between compulsory and complementary social security schemes. It considered there was a
need to further assess Member States' experience in the field of the replacement of social security
legislation by contractual provisions (see Recital 6).

Amendment 47 concerning the principle of equal treatment for frontier workers and their families
was also entirely acceptable to the Council in its spirit, although with a broader scope so as to
include not only frontier workers but all workers who do not reside in the Member State of
employment, the general principle of equal treatment being of equal
importance for all these
workers (see Recital 8).

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family
Concerning amendment 50 regarding the entitlement
members, the Council agreed with Parliament on the need to take into account their special
situation as regards access to sickness benefits in kind in the worker's Member State of employment.
This amendment has been almost entirely incorporated into the Common Position by establishing a
right to benefits in kind during a stay in the competent Member State. Article 18(2) nevertheless
provides that Member States listed in Annex III may limit access to benefits in kind to those which
become medically necessary during their stay.

frontier workers'

to benefits of

Amendment 53 regarding travel to another Member State with the purpose of receiving benefits in
kind during the stay was not entirely acceptable to the Council as the Council was not in a position
to limit the scope of the competent institution's authorisation to receive appropriate treatment
outside the State of residence to in-patient treatment.
In the Council's opinion, the effects of
such a restriction,
in particular on the reimbursement arrangements between Member States,
would also have had to be the subject of specific provisions (see Recital 21).

The Council could also accept amendment 54 regarding access of a retired frontier worker to
sickness benefits in kind in the Member State of last activity, subject to the agreement of both
Member States involved (the State of activity and the competent State for sickness benefits), such
agreement being reflected in Annex V to the Common Position (see Article 28(2)).

However, the Council did not deem it advisable to take up amendment 48 on the need for greater
convergence between the rules determining residence in double taxation agreements and in Regu-
lation (EEC) No 1408/71, as it considered that this Regulation was not the appropriate legal
framework for dealing with taxation issues.

The Council was also not in a position to accept amendments 38, 40, 45 and 49 for the reasons
mentioned by the Commission in its amended proposal.

IV. ANNEXES TO THE REGULATION

The Common Position contains eleven annexes, mainly concerning special provisions deriving from
national legislations which are referred to in the relevant articles of the draft Regulation. Three of these
Annexes (Annexes II, X and XI) have yet to be completed, but their content will be determined by
Parliament and the Council as soon as possible and at the latest before the date of application of the
Regulation.

Annex II deals with the provisions of conventions kept in force and corresponds to Annex III of the
current Regulation.

Annex X (special non-contributory benefits) corresponds to Annex IIa of the current Regulation.

Annex XI deals with special provisions regarding the application of the legislation of the Member States
and corresponds to Annex VI of the current Regulation.

Because of the highly technical and specific nature of the above annexes, the Council has considered it
best to deal with them separately in order to facilitate a comprehensive examination. This examination
has recently commenced for Annexes II (III of the current Regulation) and X (IIa of the current
Regulation),
in the first instance on the basis of the Commission proposal COM/2003/0468 final
(Miscellaneous amendments). The contents of Annex XI will need to take account of the latest devel-
opments in national legislations and will require an assessment by the Member States themselves of the
need to maintain their existing Annex entries, given the simplification and changes achieved by the
new draft Regulation.

The necessary proposals for the finalisation of the Annexes to the new Regulation will be adopted in
accordance with the Treaty.

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By allowing sufficient time for the required technical preparation of the Annexes in question, this
working method will allow both Council and Parliament to conduct a comprehensive examination of
those Annexes. It should also result in Annex entries which can be fully justified on the basis of the
criteria governing their inclusion, which are set out in the relevant articles of the Regulation.

V. CONCLUSION

The Council considers that its Common Position both fulfils the key aims of the Commission's original
proposal and, by incorporating the amendments mentioned in Section III of this statement, takes
largely into account the Opinion of the European Parliament in first reading.