Proposal for a Regulation of the European Parliament and of the Council amending Council Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community and Council Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71
Date: 2005-12-21
Institutions: European Commission
Subjects: family benefit, free movement of workers, social legislation, social-security benefit, social-security harmonisation, worker (EU)

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 21.12.2005 
COM(2005) 676 final 

2005/0258 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

110 

•  Grounds for and objectives of the proposal 

This  proposal  is  intended  to  update  Community  Regulation  (EEC)  No  1408/71  to 
reflect changes in Member States' national social security legislation. 

120 

•  General context 

The proposal is a regular update of Regulation (EEC) No 1408/71, more precisely of its 
annexes,  to  reflect  changes  of  the  legal  situation  at  national  level  correctly,  thus 
ensuring proper Community coordination of national social security schemes. 

130 

•  Existing provisions in the area of the proposal 

Regulation (EEC) No 1408/71, which was updated by Regulation (EC) No 118/97 and 
last amended by Regulation (EC) No 647/2005 of the European Parliament and of the 
Council.  

This  proposal  will  update  and  amend  the  references  in  certain  annexes  to  the 
Regulation because the national legislation to which they refer has been amended. 

141 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

211 

Consultation methods, main sectors targeted and general profile of respondents 

Member States were invited to submit requests for amendments updating Regulations 
(EEC) No 1408/71 and 574/72 to reflect the changes in their national legislation. The 
Commission  staff  evaluated  the  requests,  discussed  them  with  Member  States' 
representatives at a meeting of the Administrative Commission on Social Security for 
Migrant  Workers  and  clarified,  where  necessary,  clarified  further  details  with 
representatives from the individual Member States concerned 

212 

Summary of responses and how they have been taken into account 

The  requests  which  are  considered  to  be  compatible  with  EU  law  and  to  which  the 
Administrative Commission agreed were accepted and incorporated. 

•  Collection and use of expertise 

221 

Scientific/expertise domains concerned 

Social security coordination. 

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222 

Methodology used 

Discussions  in  meetings  of  the  Administrative  Commission  on  Social  Security  for 
Migrant  Workers  and,  where  needed,  further  discussions  to  obtain  clarification, 
particularly  on  the  details  of  national  legislation,  with  representatives  on  the 
Administrative Commission from the Member States concerned. 

223 

Main organisations/experts consulted 

Administrative Commission on Social Security for Migrant Workers, as well as some 
of the representatives on the Administrative Commission. 

2249 

Summary of advice received and used 

225 

226 

230 

The existence of potentially serious risks with irreversible consequences has not been 
mentioned. 

Agreement to update certain entries for Member States in the Annexes to Regulation 
1408/71. 

Means used to make the expert advice publicly available 

None. 

•  Impact assessment 

Member  States  frequently  amend  their  national  social  security  legislation.  As  a 
consequence, the references made to national legislation in EU legislation coordinating 
social  security  schemes  become  outdated  and  create  legal  uncertainty.  This  is  to  the 
detriment  of  EU  citizens  moving  within  the  EU,  because  they  are  not  properly 
informed about their rights and makes it more difficult for the national social security 
institutions properly to apply EU provisions coordinating social security. 

The references in EU coordinating legislation, in particular in Regulations 1408/71 and 
574/72,  therefore  need  to  be  updated  to  reflect  national  legislation  correctly.  EU 
Regulations can be updated only by a Regulation. 

It  is  in  the  interest  of  the  citizens  concerned  that  the  Community  Regulations  are 
updated  soon  after  the  changes  to  national  legislation.  Especially  in  view  of  the 
fundamental  pension  reforms  in  Sweden  and  Finland  as  well  as  the  reform  of  the 
Netherlands health care insurance scheme, Regulation 1408/71 needs to be updated as 
soon as possible, despite the entry into force, on 20 May 2004, of Regulation 883/2004 
replacing it: this new Regulation will not apply until the implementing Regulation has 
entered into force, which will probably not be before 2007. 

In terms of workload or costs, the proposed amending Regulation will make no specific 
difference  to  the  present  situation  of  social  security  institutions  and  administrations, 
workers  or  employers.  On  the  contrary,  the  objective  of  this  update  is  to  improve 
Community coordination of social security schemes, thus offering better protection for 
EU citizens moving within the EU.  

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3)  LEGAL ELEMENTS OF THE PROPOSAL 

305 

•  Summary of the proposed action 

The  proposal  is  intended  to  update  some  of  the  annexes  to  Regulation  1408/71  to 
reflect changes in Member States' national social security legislation. It will therefore 
facilitate  application  of  the  Community  legislation  coordinating  social  security 
schemes by ensuring that it correctly reflects the national legislation in force. 

310 

320 

321 

323 

324 

•  Legal basis 

Articles 42 and 308 of the EC Treaty 

•  Subsidiarity principle 

The  subsidiarity  principle  applies  insofar  as  the  proposal  does  not  fall  under  the 
exclusive competence of the Community. 

The  objectives  of  the  proposal  cannot  be sufficiently  achieved  by  the  Member  States 
for the following reason(s). 

Community action in the form of coordination measures in the field of social security 
is required by Article 42 of the Treaty and is necessary to guarantee that the right to 
free  movement  for  workers  laid  down  in  the  Treaty  can  be  fully  exercised.  Without 
such  coordination,  there  would  be  a  risk  that  freedom  of  movement  would  be 
inoperable, since people would be less likely to make use of this right if it meant, in 
essence,  losing  social  security  rights  already  acquired  in  another  Member  State. 
Existing Community legislation on social security does not aim to replace the different 
national schemes. It should be stressed that the proposed amending Regulation is not a 
harmonisation  measure  and  does  not  go  beyond  what  is  necessary  for  effective 
coordination. The proposal basically aims at updating the existing coordinating rules to 
reflect the changes that have been made to the national legislation. 

Even  though  the  proposal  is,  therefore,  mainly  based  on  contributions  by  Member 
States, Member States could not adopt such provisions at national level since this could 
potentially  conflict  with  the  Regulation.  Therefore  it  is  necessary  to  ensure  that  the 
annexes  to  the  Regulation  are  properly  adapted  so  that  the  Regulation  can  apply 
effectively in the Member States concerned. 

Social security coordination  concerns  cross-border situations where no Member State 
can act alone. The Community coordinating Regulation replaces the numerous existing 
bilateral agreements. This not only simplifies social security coordination for Member 
States but also ensures equal treatment of persons who are insured in accordance with 
national social security legislation. 

Community action will better achieve the objectives of the proposal for the following 
reason(s). 

Coordination  of  social  security  schemes  makes  sense  only  at  Community  level.  The 
aim  is  to  ensure  that  coordination  of  social  security  schemes  operates  effectively 
throughout all Member States. This is based on, and justified by, the free movement of 

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325 

327 

331 

332 

341 

342 

409 

560 

570 

persons within the EU. 

There  are  no  qualitative  indicators,  but  the  Regulation  concerns  each  EU  citizen 
moving, for whatever reason, within the EU. 

The proposal is purely a coordinating measure which can be taken only at Community 
level. Member States remain responsible for organising and financing their own social 
security schemes. 

The proposal therefore complies with the subsidiarity principle. 

•  Proportionality principle 

The proposal complies with the proportionality principle for the following reason(s). 

Regulation (EEC) No 1408/71 requires this form of action because a Regulation may 
be  amended  only  by  a  Regulation.  But  Member  States  remain  solely  responsible  for 
organising and financing their own social security schemes. 

The  proposal  makes  it  easier  for  the  Member  States  to  coordinate  social  security 
schemes and is therefore beneficial for citizens as well as for national social security 
authorities.  These  special  provisions  are  based  on  proposals  by  the  Member  States 
which means that any potential financial and administrative burden is minimized and 
proportionate to the abovementioned objective. Conversely, without such an update of 
Regulation  1408/71  the  financial  and  administrative  burdens  would  be  likely  to  be 
greater. 

•  Choice of instruments 

Proposed instruments: Regulation. 

Other means would not be adequate for the following reason(s). 

There is no alternative because a Regulation like Regulation (EEC) No 1408/71 can be 
amended only by a Regulation 

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5)  ADDITIONAL INFORMATION 

•  European Economic Area 

The proposed act concerns an EEA matter and should therefore extend to the European 
Economic Area. 

•  Detailed explanation of the proposal 

A. Article 2 (Entry into force) 

As the new Health Care Insurance Act in the Netherlands applies from 1 January 2006, 

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the amendments regarding the Netherlands in Annexes I and VI need to apply from 1 
January 2006. 

B. Annex 

I. Amendment of Annex I  

1. Amendment of Part I 

Annex I Part I defines the terms "employed persons" or "self-employed persons" where 
these cannot be determined from the national legislation. 

The wording in section "X. SWEDEN" should be brought into line with the new Social 
Insurance  Act  (1999:799)  and  a  reference  to  the  Social  Insurance  Contributions  Act 
should be added to identify self-employed persons. 

2. Amendment of Part II 

Annex  I  Part  II  defines  the  term  "member  of  the  family"  where  national  legislation 
does  not  enable  a  distinction  to  be  drawn  between  members  of  the  family  and  other 
persons 

The  wording  in  section  "Q.  NETHERLANDS"  should  be  brought  into  line  with  the 
new Health Care Insurance Act. 

II. Amendment of Annex IIa 

Annex  IIa  lists  special  non  contributory  benefits  granted  to  the  persons  concerned 
exclusively in the territory of the Member State in which they reside, under Article 10a 
of Regulation (EEC) No 1408/71. 

1.  Lithuania's  Law  of  1994  on  Social  Pensions  has  been  amended  and  the  social 
pension currently listed in Annex IIa has been split into several separate allowances. Of 
these  allowances,  the  new  social  assistance  pension  and  special  relief  allowance  are 
mixed benefits containing elements of social security and social assistance and are non-
contributory  as  they  are  financed  by  the  government,  thus  fulfilling  the  criteria  to  be 
considered  as  special  non-contributory  benefits.  The  reference  in  section  "M. 
LITHUANIA" should be amended to reflect this change in the national legislation.  

2. Although the Slovak legislature abolished the social pension by Act 461/2003 as of 
31 December 2003, the benefit continues to be paid under the old Act 100/1988 Coll. 
to  persons  who  had  previously  been  entitled  to  it.  This  benefit  is  non-contributory, 
guarantees  a  minimum  income  for  persons  who  do  not  qualify  for  a  contributory  old 
age  or  invalidity  pension  and  is  means-tested.  It  therefore  fulfils  the  criteria  to  be 
considered  as  a  special  non-contributory  benefit  and  should  therefore  be  included  in 
section "V. SLOVAKIA". 

III. Amendment of Annex III, Part A 

Annex III lists the provisions of existing bilateral agreements which were in force prior 
to the application of the Regulation in the Member States concerned. Part A lists the 
provisions  of  bilateral  agreements  which  continue  to  apply,  despite  the  fact  that  the 

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provisions  of  bilateral  agreements  are  generally  replaced  by  Regulation  (EEC) 
1408/71. 

The  provision  of  the  General  Convention  of  28  October  1952  between  Italy  and  the 
Netherlands  listed  in  Annex  III,  Part  A  concerns  the  export  of  benefits  to  non-EU 
countries. However, it should be deleted because either the payment of a pension in a 
non-EU country falls within the scope of the Regulation (if the pension falls within its 
material  scope  and  the  beneficiary  within  its  personal  scope),  in  which  case  the 
principle  of  equal  treatment  applies  or  it  does  not,  in  which  case  this  matter  can  no 
longer be dealt with in Annex III.  

IV. Amendment of Annex IV 

1. Amendment of Annex IV, Part A 

Annex IV, Part A lists the "legislations referred to in Article 37(1) of the Regulation 
under which the amount of invalidity benefits is independent of the length of periods of 
insurance." 

In  the  Slovak  Republic,  the  level  of  invalidity  pensions  depends  on  the  length  of 
insurance  periods  ("type  "B"  system),  with  the  exception  of  invalidity  pension  for 
persons  who  became  invalid  when  they  were  dependent  children  and  who  were  not 
insured for the required period but who are nevertheless deemed to have fulfilled the 
required  insurance  period.  This  benefit  should  therefore  be  included  in  section  "V. 
SLOVAKIA". 

2. Amendment of Annex IV, Part B 

Annex VI, Part B lists the special schemes for self-employed persons to which special 
provisions on the aggregation of insurance periods completed in another Member State 
apply. 

The  Spanish  law  currently  listed  in  Annex  IV,  Part  B  has  been  amended  and, 
consequently, the reference in section "G. SPAIN" should be updated accordingly. 

3. Amendment of Annex IV, Part C 

Annex IV, Part C lists the "cases referred to in Article 46(1)(b) of the Regulation where 
the  calculation  of  benefit  in  accordance  with  Article  46(1)  of  the  Regulation  may  be 
waived" as the double pension calculation will never lead to a higher result. 

If the Slovak survivor's pension is based on an old-age or invalidity pension which was 
actually  paid  to  the  deceased  person,  both  the  pro  rata  and  national  calculation  will 
always lead to the same result. This survivor's pension should therefore be included in 
section  "V.  SLOVAKIA".  Under  the  reformed  Swedish  pension  system,  the  income 
pension  is  contribution-dependent  rather  than  benefit-dependent  and  independent  of 
insurance  periods.  Therefore,  a  pro  rata  calculation  based  on  the  Regulation  is  not 
possible. The Swedish guarantee pension depends on periods of residence in Sweden, a 
pro rata calculation will always result in the same amount as the national calculation. 
Therefore the current entry in section "X. SWEDEN" should be amended accordingly. 

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4. Amendment of Annex IV, Part D 

Annex  IV,  Part  D  lists  the  benefits  (points  1  and  2)  and  agreements  (point  3)  which 
meet  the  conditions  laid  down  in  Article  46b(2)  of  the  Regulation,  thus  allowing 
application  of  the  national  legislation  regarding  the  reduction,  suspension  or 
withdrawal of benefits. 

Due to the new Swedish pension legislation, the current entries under Annex IV, Part 
D, points 1(i) and 2(i) need to be updated. In addition, income-related sickness benefits 
and activity allowances must be added to point 1(i). 

Point 3 needs to be amended to reflect the fact that the old Nordic Convention has been 
replaced  and  that  the  bilateral  agreement  on  social  security  between  Finland  and 
Luxembourg entered into force on 1 February 2002. 

V. Amendment of Annex VI 

Annex  VI  sets  out  special  procedures  for  applying  the  legislation  of  certain  Member 
States. 

Section  "E.  ESTONIA"  should  be  amended  to  add  the  rules  for  calculating  parental 
benefit when migrant workers have not worked in Estonia during the entire reference 
year required by national legislation. 

Section "Q. THE NETHERLANDS" should be amended to reflect the entry into force 
of the new health care reform as of 1 January 2006. 

Point  1(a)  specifies  the  categories  of  persons  who  are  entitled  to  health  care  under 
Netherlands legislation. 

Point 1(b) specifies the institution with which such persons must be insured. Point 1(c) 
permits  the  levying  of  premiums  or  contributions  on  such  insured  persons  and 
members of their family. Point 1(d) concerns the consequences of delays in registering 
for insurance. 

Point 1(e) specifies the benefits in kind to which a person insured in another Member 
State is entitled during a period of stay or period of residence in the Netherlands. Point 
1(f)  lists  the  Netherlands  benefits  and  pensions  that  enable  the  recipients  to  be 
considered as pensioners within the meaning of the Regulation, thus enabling them to 
benefit from the provisions of the sickness chapter of Regulation 1408/71. 

Point 1(g) clarifies that the no-claims refund is to be considered a sickness benefit in 
cash for the purpose of the Regulation. This means that the benefit will be payable by 
the Netherlands to insured persons who are resident in another Member State. 

Section  "W.  FINLAND"  should  be  amended  to  reflect  the  reform  of  the  Finnish 
employment pension legislation. It provides that when insurance periods completed in 
other Member States have to be taken into account in order to fulfil the conditions for 
an  entitlement  to  a  pension,  the  earnings  for  the  credited  period  are  calculated  only 
from the income during the reference period in Finland by dividing the income by the 
number of months of insurance in Finland.  

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Section  "X.  SWEDEN"  should  be  amended  to  reflect  the  new  legislation  regarding 
coverage  under  Swedish  social  security  legislation  and  the  reform  of  the  Swedish 
pension legislation. 

As  of  1  January  2001,  the  new  Social  Insurance  Act  (1999:799)  amended  the 
legislation  on  parental  benefits  in  Chapter  4  of  the  National  Insurance  Act.  For  the 
purpose  of  calculating  the  parental  benefit,  Point  1(a)  of  section  "X.  SWEDEN"  sets 
out how to determine income if a parent has worked in Sweden and another Member 
State  during  the  reference  period.  Point  1(b)  sets  out  how  to  determine  income  if  a 
parent has not worked in Sweden at all during the reference period. 

Point  2  of  section  "X.  SWEDEN"  concerns  certain  transitional  provisions  relating  to 
Swedish  pensions.  Under  Swedish  legislation  a  person  needs  at  least  three  years  of 
residence in Sweden to become entitled to a guarantee pension. To become entitled to a 
full guarantee pension a person needs 40 years of residence in Sweden. However, all 
persons born in or before 1937, and who have been resident in Sweden for at least 10 
years, even those who never have worked, are entitled to a full guarantee pension. This 
amendment  provides  that  the  aggregation  principle  does  not  apply  to  the  guarantee 
pensions for such persons born in or before 1937. 

Point  3  concerns  the  Swedish  sickness  benefit  and  activity  allowance.  Entitlement  to 
these benefits is based on a person's income during a reference period. Amendment (a) 
specifies how the income should be calculated, when the person has worked in another 
Member  State  and  amendment  (b)  specifies  how  the  reference  period  should  be 
determined when the person has worked in another Member State.  

Point  4  clarifies  the  rules  for  calculating  survivors'  benefits  where  the  qualification 
requirement  cannot  be  met  during  the  reference  period  in  accordance  with  Swedish 
legislation. Point (a) sets out how to take into account pension rights acquired by the 
deceased person in Member States other than Sweden during the reference period for 
the  earnings-related  survivor's  pension,  while  point  (b)  sets  out  how  to  take  into 
account such rights in connection with the right to a widow's pension where the death 
occurred on or after 1 January 2003. 

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2005/0258 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

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

(Text with EEA relevance) 

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION, 

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

Having regard to the proposal from the Commission1, 

Having regard to the opinion of the European Economic and Social Committee2, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty3, 

Whereas: 

(1) 

(2) 

(3) 

To  take  account  of  changes  in  the  legislation  of  certain  Member  States,  certain 
annexes to Regulation (EEC) No 1408/71 need to be adapted. 

Regulation (EEC) No 1408/71 should therefore be amended accordingly. 

To  ensure  that  the  fundamental  reform  of  the  Netherlands  health  insurance  scheme 
with  effect  from  1  January  2006  is  correctly  reflected  in  the  European  coordinating 
provisions from the date when it takes effect and thus provide legal certainty regarding 
the coordination of sickness benefits, it is necessary to provide that the amendments of 
Annexes I and VI to Regulation (EEC) No 1408/71 which relate to the reform of the 
Netherlands health care insurance scheme should apply retroactively with effect from 
1 January 2006. 

(4) 

The  Treaty  does  not  provide  powers  other  than  those  under  Article  308  to  take 
appropriate  measures  within  the  field  of  social  security  for  persons  other  than 
employed persons, 

1 
2 
3 

OJ C […] […], p. . 
OJ C […] […], p. . 
OJ C […] […], p. . 

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HAVE ADOPTED THIS REGULATION: 

Article 1 

Annexes I, IIa, III, IV and VI to Regulation (EEC) No 1408/71 are amended as set out in the 
Annex to this Regulation.  

Article 2 

This Regulation shall enter into force on the third day following that of its publication in the 
Official Journal of the European Union.  

Point 2 and point 6(b) of the Annex, regarding the Netherlands, shall apply with effect from 
1 January 2006. 

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

Done at Brussels,  

For the European Parliament 
The President 

For the Council 
The President 

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ANNEX  

The annexes to Regulation (EEC) No 1408/71 are amended as follows: 

1. 

In Annex I, Part I, section "X. SWEDEN" is replaced by the following: 

"X. SWEDEN 

Persons  who  are  engaged  in  gainful  employment  and  who  pay  their  own 
contributions  on  this  income  pursuant  to  Chapter  3  of  the  Social  Insurance 
Contributions Act (2000:980) shall be considered as self-employed." 

2. 

In Annex I, Part II, section "Q. NETHERLANDS" is replaced by the following: 

"Q. NETHERLANDS 

For the purpose of determining entitlement to benefits pursuant to Chapters 1 and 4 
of  Title  III  of  the  Regulation,  "member  of  the  family"  means  a  spouse,  registered 
partner or child under the age of 18." 

3. 

Annex IIa is amended as follows: 

(a)  Section "M. LITHUANIA" is replaced by the following: 

"M. LITHUANIA  

(a)  Social  assistance  pension  (Law  of  2005  on  State  Social  Allowances, 

Article 5). 

(b)  Special  relief  compensation  (Law  of  2005  on  State  Social  Allowances, 

Article 15). 

(c)  Special  transport  compensation  for  the  disabled  who  have  mobility 

problems (Law of 2000 on Transport Compensation, Article 7)." 

(b) 

In  section  "V.  SLOVAKIA",  the  current  entry  becomes  point  (a)  and  the 
following new point is added: 

"(b) Social pension which has been awarded before 1 January 2004." 

4. 

Annex III, Part A is amended as follows: 

Point 187 is deleted. 

5. 

Annex IV is amended as follows: 

(a) 

In  Part  A,  in  section  "V.  SLOVAKIA",  the  word  "None"  is  replaced  by  the 
following: 
"Invalidity pension for a person who became invalid as a dependent child and 
who  is  always  deemed  to  have  fulfilled  the  required  period  of  insurance 
(Article 70(2), Article 72(3) and Article 73(3) and (4) of Act No 461/2003 on 
social insurance, as amended)." 

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(b) 

In Part B, section "G. SPAIN" is replaced by the following:  
"G. SPAIN 
Scheme  for  lowering  the  retirement  age of  self-employed  persons  engaged  in 
seafaring  activities  as  described 
in  Royal  Decree  No  2930/2004  of 
30 December 2004." 

(c)  Part C is amended as follows: 

(i) 

In  section  "V.  SLOVAKIA",  the  word  "None"  is  replaced  by  the 
following: 

"Survivor’s  pension  (widow’s,  widower’s  and  orphan’s  pension)  the 
amount of which is derived from the old-age pension, pre-retirement old-
age pension or invalidity pension formerly paid to the deceased."  

(ii)  Section "X. SWEDEN" is replaced by the following:   

"X. SWEDEN 
"Earnings-related  old-age  pensions  (Act  1998:674)  and  guarantee 
pensions in the form of old-age pensions (Act 1998:702)" 

(d)  Part D is amended as follows: 

(i) 

Point 1(i) is replaced by the following: 

"(i)  Swedish  guarantee  pension  and  guarantee  supplement  which  tops 
up the full Swedish state pensions provided under the legislation on 
the state pension which applied before 1 January 1993, and the full 
state pension awarded under the transitional rules of the legislation 
applying  from  that  date,  and  Swedish  income-related  sickness 
benefit and activity allowance." 

(ii)  Point 2(i) is replaced by the following: 

"(i)  Sickness  benefit  and  activity  allowance  in  the  form  of  guarantee 
allowance (Act 1962:381, as amended by Act 2001:489), survivor's 
pension,  as  calculated  on  the  basis  of  insurance  periods  (Acts 
2000:461  and  2000:462)  and  old-age  pension  in  the  form  of 
guarantee  pension  calculated  on  the  basis  of  previously  credited 
periods (Act 1998:702)." 

(iii)  Point 3(a) is replaced by the following: 

"(a)  Nordic Convention on Social Security of 18 August 2003" 

and the following new point is added: 

"(c)  Social  Security  Agreement  of  10  November  2000  between  the 
Republic of Finland and the Grand Duchy of Luxembourg." 

6. 

Annex VI is amended as follows: 

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(a) 

In section "E. ESTONIA", the word "None" is replaced by the following: 
"For the purpose of calculating parental benefit the periods of employment in 
Member States other than Estonia shall be considered to be based on the same 
average  amount  of  social  tax  as  paid  during  the  periods  of  employment  in 
Estonia, with which they are aggregated. If during the reference year the person 
has been employed only in other Member States the calculation of the benefit 
shall  be  considered  to  be  based  on  the  average  social  tax  paid  in  Estonia 
between the reference year and the maternity leave." 

(b) 

In section "Q. NETHERLANDS", point 1 shall be replaced by the following: 

"1.  Health care insurance 

(a)  As  regards  entitlement  to  benefits  in  kind  under  Netherlands 
legislation,  persons  entitled  to  benefits  in  kind  for  the  purpose  of 
the  implementation  of  Chapters  1  and  II  of  Title  III  of  this 
Regulation shall mean: 

(i) 

persons  who,  under  Article  2  of  the  Zorgverzekeringswet 
(Health  Care  Insurance  Act),  are  obliged  to  take  out 
insurance under a health care insurer, 

and  

(ii) 

insofar  as  they  are  not  already  included  under  point  (i), 
persons who are resident in another Member State and who, 
under the Regulation, are entitled to health care in their state 
of residence, the costs being borne by the Netherlands. 

(b)  The persons referred to in point (a)(i) must, in accordance with the 
provisions of the Zorgverzekeringswet (Health Care Insurance Act), 
take  out  insurance  with  a  health  care  insurer,  and  the  persons 
referred  to  in  point  a(ii)  must  register  with  the  College  voor 
zorgverzekeringen (Health Care Insurance Board). 

(c)  The provisions of the Zorgverzekeringswet (Health Care Insurance 
Act)  and  the  Algemene  wet  bijzondere  ziektekosten  (Law  on 
General  Insurance  Against  Special  Medical  Expenses)  concerning 
liability for the payment of contributions shall apply to the persons 
referred  to  under  point  (a)  and  the  members  of  their  families.  In 
respect of family members, the contributions shall be levied on the 
person from whom the right to health care is derived. 

(d)  The provisions of the Zorgverzekeringswet (Health Care Insurance 
Act) concerning late insurance shall apply mutatis mutandis in the 
event  of  late  registration  with  the  College  voor  zorgverzekeringen 
(Health Care Insurance Board) in respect of the persons referred to 
in point a(ii). 

(e)  Persons entitled to benefits in kind by virtue of the legislation of a 
Member  State  other  than  the  Netherlands  who  reside  in  the 

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Netherlands or stay temporarily in the Netherlands shall be entitled 
to benefits in kind in accordance with the policy offered to insured 
persons  in  the  Netherlands  by  the  institution  of  the  place  of 
residence or the place of stay, taking into account Article 11(1), (2) 
and (3) and Article 19(1) of the Zorgverzekeringswet (Health Care 
Insurance  Act),  as  well  as  to  benefits  in  kind  provided  for  by  the 
Algemene  wet  bijzondere  ziektekosten  (Law  on  General  Insurance 
Against Special Medical Expenses). 

(f) 

For  the  purposes  of  Articles  27  to  34  of  this  Regulation,  the 
following  benefits  shall  be 
treated  as  pensions  due  under 
Netherlands legislation: 

– 

– 

– 

– 

- 

– 

pensions  awarded  under  the  Law  of  6  January  1966  on 
pensions  for  civil  servants  and  their  survivors  (Algemene 
burgerlijke pensioenwet) (Netherlands Civil Service Pensions 
Act); 

pensions  awarded  under  the  Law  of  6  October  1966  on 
pensions for military personnel and their survivors (Algemene 
militaire pensioenwet) (Military Pensions Act); 

benefits  for  incapacity  for  work  awarded  under  the  Law  of 
7 June  1972  on  benefits  for  incapacity  for  work  for  military 
personnel 
arbeidsongeschiktheidsvoorziening 
militairen) (Military Personnel Incapacity for Work Act); 

(Wet 

pensions  awarded  under  the  Law  of  15  February  1967  on 
pensions  for  employees  of  the  NV  Nederlandse  Spoorwegen 
(Netherlands  Railway  Company)  and 
their  survivors 
(Spoorwegpensioenwet) (Railway Pensions Act); 

pensions  awarded  under  the  Reglement  Dienstvoorwaarden 
Nederlandse  Spoorwegen  (Regulation  governing  conditions 
of employment of the Netherlands Railway Company); 

benefits  awarded  to  retired  persons  before  reaching  the 
pensionable age of 65 years under a pension scheme designed 
to  provide  income  for  former  employed  persons  in  their  old 
age, or benefits provided in the event of premature exit from 
the labour market under a scheme set up by the state or by an 
industrial agreement for persons aged 55 or over whereby the 
percentage  benefit  is  set  at  at  least  70%  of  the  latest  salary.

(g)  For the purposes of Chapters 1 and 4 of Title III of this Regulation, 
the no-claims refund provided for in the Netherlands scheme in the 
event of limited use of health care facilities shall be deemed to be a 
sickness benefit in cash." 

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(c) 

In section "W. FINLAND", points 1 and 2 are deleted and the following point 
is inserted: 

"1.  When  applying  Article  46(2)(a)  for  the  purpose  of  calculating  earnings 
for  the  credited  period  under  Finnish  legislation  on  earnings-related 
pensions,  where  an  individual  has  pension  insurance  periods  based  on 
employment  in  another  Member  State  for  part  of  the  reference  period 
under  Finnish  legislation,  the  earnings  for  the  credited  period  shall  be 
equivalent  to  the  sum  of  earnings  obtained  during  the  part  of  the 
reference period in Finland divided by the number of months for which 
there were insurance periods in Finland during the reference period." 

Points 3, 4 and 5 are renumbered points 2, 3 and 4. 

(d)  Section "X. SWEDEN" is amended as follows: 

(i) 

Point 1 is replaced by the following: 

"1.  For the purpose of determining a parent's income during 240 days 
before  the  birth  of  the  child  under  Chapter  4  section  6  of  Lag 
(1962:381) om allmän försäkring (the National Insurance Act): 

(a)  where  during  part  of  that  period  the  parent  had  income  in 
Sweden, and during another part of that period had income in 
another  Member  State,  the  parent's  annual  income  in  the 
other  Member  State  shall  be  considered  to  be  equal  to  the 
parent's annual income in Sweden; 

(b)  where during that period a parent had no income in Sweden 
but had income in another Member State, this income shall be 
considered to be above the minimum guaranteed level (lägsta 
nivå)  provided  the  parent  has  been  economically  active  in 
that other Member State to the extent that the activity would 
have  given  rise  to  an  income  above  the  required  minimum 
guaranteed  level  (lägsta  nivå)  if  it  had  been  carried  out  in 
Sweden." 

(ii)  Point 2 is replaced by the following: 

"2.  The  provisions  of  this  Regulation  on  the  aggregation  of  insurance 
periods shall not apply to the transitional provisions in the Swedish 
legislation on entitlement to guarantee pension for persons born in 
or  before  1937  who  have  been  resident  in  Sweden  for  a  specified 
period before applying for a pension (Act 2000:798)." 

(iii)  Point 3 is replaced by the following: 

"3.  For the purpose of calculating notional income for earnings-related 
sickness  benefit  and  earnings-related  activity  allowance 
in 
accordance  with  Chapter  8  of  Lag  (1962:381)  om  allmän 
försäkrings (the National Insurance Act), the following shall apply: 

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(a)  where  the  insured  person,  during  the  reference  period,  has 
also  been  subject  to  the  legislation  of  one  or  more  other 
Member States on account of activity as an employed or self-
employed person, income in the Member State(s) concerned 
shall  be  deemed  to  be  equivalent  to  the  insured  person's 
average  gross  income  in  Sweden  during  the  part  of  the 
reference  period  in  Sweden,  calculated  by  dividing  the 
earnings  in  Sweden  by  the  number  of  months  over  which 
those earnings accrued; 

(b)  where the benefits are calculated pursuant to Article 40 of the 
Regulation  and  persons  are  not  insured  in  Sweden,  the 
reference  period  shall  be  determined  in  accordance  with 
Chapter  8(2)  and  (8)  of  the  abovementioned  Act  as  if  the 
person  concerned  were  insured  in  Sweden.  If  the  person 
concerned  has  no  pension-generating  income  during  this 
period  under  the  Act  on  earnings-related  old-age  pension 
(1998:674),  the  reference  period  shall  be  permitted  to  run 
from  the  earlier  point  in  time  when  the  insured  person  had 
income from gainful employment in Sweden." 

(iv)  Point 4 is replaced by the following: 

"4. 

a) 

For  the  purpose  of  calculating  notional  pension  income  for 
earnings-related  survivor’s  pension  (Act  2000:461),  if  the 
requirement in Swedish legislation for pension entitlement in 
respect  of  at  least  three  out  of  the  five  calendar  years 
immediately preceding the insured  person’s death (reference 
period)  is  not  met,  account  shall  also  be  taken  of  insurance 
periods completed in other Member States as if they had been 
completed  in  Sweden.  Insurance  periods  in  other  Member 
States  shall  be  regarded  as  based  on  the  average  Swedish 
pension  base.  If  the  person  concerned  has  only  one  year  in 
Sweden with a pension base, each insurance period in another 
Member  State  shall  be  regarded  as  constituting  the  same 
amount. 

b) 

relating 

For  the  purpose  of  calculating  notional  pension  credits  for 
widow’s  pensions 
to  deaths  on  or  after 
1 January 2003, if the requirement in Swedish legislation for 
pension credits in respect of at least two out of the four years 
immediately preceding the insured person’s  death (reference 
period)  is  not  met  and  insurance  periods  were  completed  in 
another  Member  State  during  the  reference  period,  those 
years  shall  be  regarded  as  being  based  on  the  same  pension 
credits as the Swedish year." 

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