Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) No 883/2004 on the coordination of social security systems, and determining the content of Annex XI
Date: 2006-01-24
Institutions: European Commission
Subjects: EU Member State, social-security benefit, social-security harmonisation

COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 24.1.2006 
COM(2006)7 final 

2006/0008 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 883/2004 on the coordination of social security systems, 
and determining the content of Annex XI 

(presented by the Commission) 

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EXPLANATORY MEMORANDUM 

1)  CONTEXT OF THE PROPOSAL 

110 

•  Grounds for and objectives of the proposal 

Article  83  of  Regulation  (EC)  No  883/2004  of  the  European  Parliament  and  of  the 
Council of 29 April 2004 on the coordination of social security systems provides that 
"Special  provisions  for  implementing  the  legislation  of  certain  Member  States  are 
referred to in Annex XI.". As recital 41 of Regulation 883/2004 states, "It is necessary 
to  lay  down  special  provisions  which  correspond  to  the  special  characteristics  of 
national legislation in order to facilitate the application of the rules of coordination". 

120 

•  General context 

Regulation 883/2004 replaces Regulation (EEC) No 1408/71 which currently provides 
for  the  coordination  of  social  security  systems.  The  new  Regulation  simplifies  and 
modernises  the  existing  legislation.  Annex  XI  of  Regulation  883/2004  provides  for 
"Special  provisions  for  the  application  of  the  legislation  of  the  Member  States"  and 
replaces  the  corresponding  Annex  VI  of  Regulation  1408/71.  Regulation  833/2004 
provides  that  the  content  of  Annex  XI  must  be  determined  before  the  date  of 
application of this Regulation. This Annex is necessary in order to take into account the 
particularities of the various social security systems of Member States. 

Some  entries  for  Annex  XI  were  specifically  agreed  during  the  negotiations  on  the 
modernised Regulation (see Council document 8851/04 ADD 1). However, the entries 
for  Germany  and  Austria  regarding  certain  regional  benefits,  which  were  originally 
agreed in June 2003, have not been included in this proposal due to later developments 
in  the  case  law  of  the  European  Court  of  Justice  (see  the  opinion  of  the  Advocate 
General of 20 October 2005 in case C-286/03 Hosse). In addition, entry No 4 under the 
heading  "C.  DENMARK"  was  agreed  within  the  framework  of  the  adoption  of 
Regulation (EC) 647/2005, which amended Regulation 1408/71.  

130 

•  Existing provisions in the area of the proposal 

Annex  XI  of  Regulation  883/2004  corresponds  to  Annex  VI  of  Regulation  1408/71. 
Both annexes provide for special provisions for the application of the legislation of the 
Member States. In accordance with the general objective of simplification, Annex XI 
contains fewer entries than the current Annex VI. 

141 

•  Consistency with other policies and objectives of the Union 

Not applicable. 

2)  CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT 

•  Consultation of interested parties 

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211 

Consultation methods, main sectors targeted and general profile of respondents 

Since  Annex  XI  of  Regulation  883/2004  provides  for  special  provisions  for  the 
application of the legislation of the Member States, each Member State was invited to 
submit  any  proposals  needed  for  the  application  of  its  legislation.  The  Commission 
services then evaluated the proposals and discussed further details with officials of the 
Member States concerned.  

212 

Summary of responses and how they have been taken into account 

Member States requested about 150 entries in Annex XI. Some 50 proposals have been 
accepted for inclusion in the Annex. Other requests for entries in Annex XI of a more 
general  nature  are  being  covered  by  proposals  for  minor  amendments  to  Regulation 
883/04;  these  are  of  a  mainly  technical  nature.  Other  issues  have  been  taken  into 
account in the proposal for an Implementing Regulation. Finally, other requests were 
not considered appropriate for inclusion in the Annex because they were superfluous or 
incompatible with Regulation 883/2004.  

•  Collection and use of expertise 

There was no need for external expertise. 

•  Impact assessment 

229 

230 

Regulation  883/2004  simplifies  and  modernises 
legislation.  The 
Regulation provides that the content of Annex XI must be determined before the date 
of application of the Regulation. This Annex is necessary in order to take into account 
the particularities of the various social security systems of Member States. 

the  existing 

The  proposal  facilitates  the  coordination  of  social  security  schemes  in  the  Member 
States  and  modernises  and  simplifies  existing  procedures.  This  will  have  a  positive 
impact  in  comparison  with  the  existing  legislation  and  will  improve  administrative 
procedures for all users of the Regulation, including national social security authorities, 
employers,  in  particular  small  and  medium-sized  businesses,  and  individual  citizens. 
However, it may be difficult to gauge the precise impact at this stage. 

3)  LEGAL ELEMENTS OF THE PROPOSAL 

305 

•  Summary of the proposed action 

Annex  XI  of  Regulation  883/2004  sets  out  particular  methods  for  applying  the 
legislation  of  certain  Member  States.  This  Annex  will  facilitate  the  application  of 
Regulation  883/2004  by  ensuring  the  smooth  interaction  of  Community  legislation 
with  national  laws.  Annex  XI  contains  separate  sections  for  each  Member  State 
containing,  where  necessary,  supplementary  provisions  regarding  specific  aspects  of 
that  Member  State's  legislation.  The  purpose  of  each  entry  is  to  ensure  that  the 
Regulation can be smoothly applied in the Member State concerned.  

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310 

320 

321 

324 

325 

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•  Legal basis 

Articles 42 and 308 of the Treaty establishing the European Community. 

•  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 social security is required 
by  Article  42  of  the  Treaty  and  is  necessary  to  guarantee  that  the  right  to  free 
movement laid down in the Treaty can be fully exercised. Without such coordination, 
freedom of movement would run the risk of being 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 social security systems. It should 
be stressed that the proposed Regulation is not a harmonisation measure and does not 
go beyond what is necessary for effective coordination. The proposal is basically aimed 
at simplifying the existing arrangements. 

Annex  XI  is  essentially  based  on  contributions  by  the  Member  States.  However,  the 
Member  States  cannot  make  such  provisions  at  national  level  since  this  could 
potentially conflict  with the  Regulation. Therefore it is necessary to ensure  in Annex 
XI  that  the  Regulation  is  properly  adapted  so  that  it  can  apply  effectively  in  the 
Member State concerned.  

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

Coordination of social security schemes - Annex XI being a part of this - can only be 
done  at  Community  level.  The  aim  is  to  ensure  that  coordination  of  social  security 
schemes operates effectively throughout all Member States. 

As  regards  qualitative  indicators,  as  the  proposal  is  purely  a  coordination  measure,  it 
can  only  be  put  into  effect  at  Community  level.  The  proposal  will  lead  to  more 
effective coordination of the Member States' social security schemes.  

Member  States  remain  responsible  for  the  organisation  and  financing  of  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). 

331 

Regulation 883/2004 already requires this form of action, as Annex XI is part of this 

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332 

341 

342 

409 

510 

511 

512 

513 

560 

570 

Regulation.  

The  proposal  facilitates  the  coordination  of  social  security  schemes  for  the  Member 
States  and  is  therefore  beneficial  for  both  citizens  and  national  social  security 
authorities.  These  special  provisions  are  based  on  proposals  by  the  Member  States, 
meaning  that  any  potential  financial  and  administrative  burden  is  minimised  and 
proportionate  to  the  objective  mentioned  above.  Indeed,  without  Annex  XI,  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 option since Regulation 883/2004 already requires this form of 
action, as Annex XI is part of this Regulation. 

4)  BUDGETARY IMPLICATION 

The proposal has no implication for the Community budget. 

5)  ADDITIONAL INFORMATION 

•  Simplification 

The proposal provides for simplification of legislation, simplification of administrative 
procedures for public authorities (EU or national). 

There  will  be  fewer  entries  in  Annex  XI  of  Regulation  883/2004  compared  to  the 
corresponding Annex VI of Regulation 1408/71. 

Annex XI facilitates coordination tasks for the competent national authorities since it 
contains  special  provisions  for  the  application  of  the  legislation  of  certain  Member 
States. 

•  European Economic Area 

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

•  Detailed explanation of the proposal 

1.  Annex  XI  aims  to  take  account  of  the  particularities  of  the  various  social  security 
systems  of  Member  States.  Member  States  have  provided  the  Commission  with  their 
requests and with legal and practical explanations of their systems and legislation.  

2.  In  accordance  with  the  need  for  rationalisation,  a  common  approach  has  been 
followed  to  ensure  that  entries  for  different  Member  States  which  are  of  a  similar 
nature or pursue the same objective are in principle dealt with in the same manner. 

3. Some entries have not been incorporated into Annex XI as the issue has been raised 

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to  a  wider  level,  either  through  clarification  of  Regulation  883/04,  or  through  a 
provision in the proposal for an implementing regulation. 

4.Some technical amendments to provisions of Regulation 883/04 have been made to 
include  items  which  were  of  a  general  character,  and  also  in  order  to  avoid  several 
similar entries in Annex XI in respect of different Member States. 

5. As the aim of Regulation 883/04 is to coordinate social security legislation for which 
Member States are exclusively responsible, entries which are not compatible with the 
purpose  or  objectives  of  the  Regulation,  and  entries  seeking  solely  to  clarify  the 
interpretation of national legislation, have not been included in Annex XI. 

E-5838 

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2006/0008 (COD) 

Proposal for a 

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL 

amending Regulation (EC) No 883/2004 on the coordination of social security systems, 
and determining the content of Annex XI 

(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 Commission1, 

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

Having regard to the opinion of the Committee of the Regions3, 

Acting in accordance with the procedure laid down in Article 251 of the Treaty4, 

Whereas: 

(1) 

(2) 

(3) 

Articles  51(3),  56(1)  and  83  of  Regulation  (EC)  No 883/2004  of  the  European 
Parliament and of the Council of 29 April 2004 on the coordination of social security 
systems provide for special provisions concerning the application of the legislation of 
the Member States to be set out in Annex XI to that Regulation. Annex XI is intended 
to take account of the particularities of the various social security systems of Member 
States in order to facilitate the application of the rules on coordination. 

A number of Member States have asked for entries concerning the application of their 
social  security  legislation  to  be  included  in  Annex  XI  and  have  provided  the 
Commission with legal and practical explanations of their legislation and systems. 

In  accordance  with  the  need  for  rationalisation  and  simplification  in  the  new 
Regulation, a common approach is needed in order to ensure that entries in respect of 
different Member States which are of a similar nature or pursue the same objective are 
in principle dealt with in a similar manner. 

(4) 

As the aim of Regulation (EC) No 883/2004 is to coordinate social security legislation 
for which Member States are exclusively responsible, entries which are not compatible 

1 
2 
3 
4 

OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 
OJ C , , p. . 

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(5) 

(6) 

(7) 

with the purpose or objectives of the Regulation, and entries seeking solely to clarify 
the interpretation of national legislation, should not be included in the Regulation. 

Some  requests  raised  issues  that  were  common  to  several  Member  States:  it  is 
therefore  appropriate  to  deal  with  those  issues  at  a  more  general  level,  either  by 
clarification in the body of Regulation (EC) No 883/2004 or in another of its Annexes, 
which  should  therefore  be  amended  accordingly,  or  through  a  provision  in  the 
Implementing  Regulation  referred  to  in  Article  89,  rather  than  by  way  of  similar 
provisions in Annex XI for several Member States. 

It is also appropriate to deal with certain specific issues in other Annexes, according to 
their purpose and content, rather than in Annex XI, in order to ensure consistency in 
the Annexes to the Regulation. 

In order to facilitate the use of the Regulation by citizens when asking for information 
or making claims to the institutions of the Member States, references to the legislation 
of  the  Member  States  concerned  should  also  be  made  also  in  the  original  language 
wherever necessary to avoid any possible misunderstanding. 

(8) 

Regulation (EC) No 883/2004 should therefore be amended accordingly. 

(9) 

Regulation (EC) No 883/2004 states that it is to apply from the date of entry into force 
of  the  Implementing  Regulation.  This  Regulation  should  therefore  apply  from  the 
same date. 

HAVE ADOPTED THIS REGULATION: 

Article 1 

Regulation (EC) No 883/2004 is hereby amended as follows:  

1. 

In Article 14, paragraph 4 is replaced by the following: 

“4  Where  the  legislation  of  a  Member  State  makes  admission  to  voluntary 
insurance  or  optional  continued  insurance  conditional  upon  residence  in  that 
Member  State  or  upon  previous  activity  as  an  employed  or  self-employed 
person, Article 5(b) shall apply only to persons who have been subject, at some 
earlier stage, to the legislation of that Member State on the basis of an activity 
as an employed or self-employed person. 

5  Where  the  legislation  of  a  Member  State  makes  admission  to  a  voluntary 
insurance or optional continued insurance scheme conditional upon the person 
having  completed  insurance  periods,  such  admission  shall  only  be  granted  to 
persons  who  have  previously  completed  insurance  periods  in  that  Member 
State under the same scheme.” 

In Article 51(3), before the words “in accordance with the procedures provided for in 
Annex XI”, the words “where necessary” are inserted. 

In Article 52, paragraph 4 is replaced by the following: 

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“4  The competent institution may waive the pro rata calculation: 

(a)  where the calculation pursuant to paragraph (1)(a) in one Member State 
invariably results in the independent benefit being equal to or higher than 
the pro rata benefit calculated in accordance with paragraph (1)(b); 

(b)  where the pension is based on a defined contribution scheme. 

The cases referred to in points (a) and (b) are set out in Annex VIII.”. 

4. 

5. 

In Article 56(1)(c), before the words “in accordance with the procedures laid down in 
Annex XI”, the words “where necessary” are inserted. 

The Annexes are amended in accordance with the Annex to this Regulation. 

Article 2 

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

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

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 (EC) No 883/2004 are amended as follows. 

1. 

In Annex I, section II, after the text under the heading “C. FRANCE” the following 
phrase is added:  

“, except when they are paid to a person who remains subject to French legislation 
pursuant to Article 12 or Article 16”. 

2. 

Annex VIII is amended as follows: 

(a) 

the title of the Annex is replaced by the following: 

“CASES  IN  WHICH  THE  PRO  RATA  CALCULATION  MAY  BE 
WAIVED”; 

(b) 

after  the  entry  under  the  heading  “A.  DENMARK”  the  following  entry  is 
added:   

“AA.  GERMANY 
Benefits of a Berufsständische Versorgungseinrichtung für die kammerfähigen 
Berufe  (welfare  institution  for  professions  that  have  set  up  their  own 
chambers).”; 

(c) 

after the entry under the heading “B. FRANCE” the following entry is added:

“Basic or supplementary schemes in which old-age benefits are calculated on 
the basis of retirement points.”; 

(d) 

after the entry under the heading “D. NETHERLANDS” the following entries 
are added: 

“DA.  AUSTRIA 
Benefits  or  parts  of  benefits  of  a  Versorgungseinrichtung  der  Kammern  der 
Freien  Berufe  (Welfare  Institution  of  the  Chambers  for  Liberal  Professions), 
which  are  financed  exclusively  by  a  capital-funded  pension  scheme  or  which 
are based on a pension account system. 

POLAND 

DB. 
Old  age  pensions  under  the  scheme  based  on  the  defined  contribution 
principle.”; 

(e) 

after  the  entry  under  the  heading  “G.  UNITED  KINGDOM”  the  following 
entries are added: 
“All  applications  for  graduated  retirement  benefits  paid  pursuant  to  the 
National  Insurance  Act  1965,  sections  36  and  37,  and  the  National  Insurance 
Act (Northern Ireland) 1966, sections 35 and 36. 

All  applications  for  additional  pension  pursuant  to  the  Social  Security 

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Contributions  and  Benefits  Act  1992,  section  44,  and  the  Social  Security 
Contributions and Benefits (Northern Ireland) Act 1992, section 44.”. 

3. 

Annex XI is replaced by the following: 

“ANNEX XI 

SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION 
OF THE MEMBER STATES 

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

A. BELGIUM 

None 

B. CZECH REPBULIC 

None 

C. DENMARK 

1. 

2. 

Persons who, pursuant to Chapter 1 of Title III of the Regulation, are entitled to 
benefits  in  kind  during  a  period  of  stay  in  Denmark  shall  be  entitled  to  such 
benefits  on  the  same  terms  as  persons  who,  under  the  lov  om  offentlig 
sygesikring (National Health Security Act), come within Group 1. 

(a)  For  the  purpose  of  calculating  the  pension  under  the  lov  om  social 
pension (Social Pension Act), periods of activity as an employed or self-
employed person completed in Denmark by a frontier worker or a worker 
who has gone to Denmark to do work of a seasonal nature are regarded 
as  periods  of  residence  completed  in  Denmark  by  the  surviving  spouse 
insofar  as,  during  those  periods,  the  surviving  spouse  was  linked  to  the 
above-mentioned  worker  by  marriage  without  separation  from  bed  and 
board or de facto separation on grounds of incompatibility and provided 
that  during  those  periods  the  spouse  resided  in  the  territory  of  another 
Member State. 

For  the  purposes  of  this  paragraph,  “work  of  a  seasonal  nature”  means 
work  which,  being  dependent  on  the  succession  of  the  seasons, 
automatically recurs each year. 

(b)  For  the  purpose  of  calculating  the  pension  under  the  lov  om  social 
pension (Social Pension Act), periods of activity as an employed or self-
employed  person  completed  in  Denmark  before  1  January  1984  by  a 
person  to  whom  paragraph  2(a)  does  not  apply  shall  be  regarded  as 
periods  of  residence  completed  in  Denmark  by  the  surviving  spouse, 
insofar  as,  during  those  periods,  the  surviving  spouse  was  linked  to  the 
person  by  marriage  without  separation  from  bed  and  board  or  de  facto 
separation on grounds of incompatibility, and provided that, during those 
periods, the spouse resided in the territory of another Member State. 

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(c)  Periods to be taken into account under the terms of (a) and (b) shall not 
be  taken  into  consideration  if  they  coincide  with  the  periods  taken  into 
account  for  the  calculation  of  the  pension  due  to  the  person  concerned 
under the legislation on compulsory insurance of another Member State 
or with the periods during which the person concerned received a pension 
under  such  legislation.  These  periods  shall,  however,  be  taken  into 
consideration  if  the  annual  amount  of  the  said  pension  is  less  than  half 
the basic amount of the social pension. 

(a)  Notwithstanding the provisions of Article 6, persons who have not been 
gainfully  employed  in  one  or  more  Member  States  are  entitled  to  a 
Danish  social  pension  only  if  they  have  been,  or  have  previously  been, 
permanent  residents  of  Denmark  for  at  least  three  years,  subject  to  the 
age limits prescribed by Danish legislation. Subject to Article 4, Article 7 
does not apply to a Danish social pension to which entitlement has been 
acquired by such persons. 

(b)  The  above-mentioned  provisions  do  not  apply  to  Danish  social  pension 
entitlement  for  the  family  members  of  persons  who  are  or  have  been 
gainfully employed in Denmark, or for students or the members of their 
families. 

The temporary benefit for unemployed persons who have been admitted to the 
ledighedsydelse  (“flexible  job”  scheme)  (Law  No  455  of  10  June  1997)  is 
covered  by  Title  III,  Chapter  6  of  this  Regulation.  As  regards  unemployed 
persons going to another Member State, Articles 64 and 65 will be applicable 
when  this  Member  State  has  similar  employment  schemes  for  the  same 
category of persons. 

3. 

4. 

5.  Where the beneficiary of a Danish social pension is also entitled to a survivor's 
pension from another Member State, these pensions for the implementation of 
Danish  legislation  shall  be  regarded  as  benefits  of  the  same  kind  within  the 
meaning  of  Article  53(1),  subject  to  the  condition,  however,  that  the  person 
whose periods of insurance or of residence serve as the basis for the calculation 
of the survivor's pension had also acquired a right to a Danish social pension. 

D. GERMANY 

1.  Notwithstanding  Article  5(a),  pensions  which  are  paid  by  the  institution  of 
another  Member  State  are  subject  to  compulsory  insurance  with  the  sickness 
insurance  scheme  for  pensioners  to  the  extent  determined  by  German 
legislation alone. 

2.  A person in receipt of a pension under German legislation and a pension under 
the  legislation  of  another  Member  State  shall  be  deemed,  for  the  purpose  of 
applying Article 23, to be entitled to sickness and maternity benefits in kind if, 
under Article 8(1), point 4, of the Sozialgesetzbuch V (VolumeV of the Social 
Code), that person is exempted from compulsory sickness insurance. 

3.  Notwithstanding Article  5(a),  the  provisions  under Article 5(4), point1, of the 
Sozialgesetzbuch VI (Volume VI of the Social Code) do not apply to a person 

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entitled to a full old-age pension under the legislation of another Member State 
if that person requests compulsory affiliation. 

4.  Notwithstanding  Article  5(a)  of  this  Regulation  and  Article  7(3)  of  the 
Sozialgesetzbuch  VI  (Volume  VI  of  the  Social  Code),  a  person  who  is 
compulsorily insured in another Member State or receives an old-age pension 
under the legislation of another Member State may join the voluntary insurance 
scheme in Germany. 

5. 

6. 

The pauschale Anrechnungszeit (fixed credit period) pursuant to Article 253 of 
the  Sozialgesetzbuch  VI  (Volume  VI  of  the  Social  Code)  shall  be  determined 
exclusively with reference to German periods. 

In  cases  to  which  the  German  pension  legislation  in  force  on  31  December 
1991 is applicable, only the German legislation in force at that date applies for 
the purposes of crediting German Ersatzzeiten (substitute qualifying periods). 

E. ESTONIA 

1. 

For  the  purpose  of  calculating  parental  benefit,  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. 

F. GREECE 

None. 

G. SPAIN 

1 

2 

In  all  Spanish  social  security  schemes,  with  the  exception  of  the  scheme  for 
civil servants, the armed forces and the judicial administration, a person who is 
no longer insured under Spanish legislation shall be deemed still to be insured, 
when  the  risk  materialises,  for  the  purposes  of  Chapter  5  of  Title  III  of  this 
Regulation, if he is insured under the legislation of another Member State at the 
time of materialisation of the risk or, failing that, in the case where a benefit is 
due for the same risk in pursuance of the legislation of another Member State. 
The  latter  condition  shall  be  deemed  to  have  been  fulfilled,  however,  in  the 
case referred to in Article 57(1). 

For  the  purposes  of  implementing  the  provisions  of  Chapter  5  of  Title  III  of 
this Regulation, the years which the worker lacks to reach the pensionable or 
compulsory  retirement  age  stipulated  in  point  4  of  Article  31  of  the 
consolidated  text  of  the  Ley  de  clases  pasivas  del  Estado  (Law  on  State 
Pensioners) will be taken into account as service performed only if at the time 
of  materialisation  of  the  risk  in  respect  of  which  invalidity  or  death  pensions 
are  due,  the  beneficiary  was  covered  by  Spain’s  special  scheme  for  public 
servants or in an activity accorded like treatment under that scheme. 

EN 

13 

   EN 

 
3 

3 

4 

(a)  Under Article 56(1)(c), the calculation of the theoretical Spanish benefit 
shall be carried out on the basis of the actual contributions of the person 
during the years immediately preceding payment of the last contribution 
to Spanish social security. Where, in the calculation of the basic amount 
for  the  pension,  periods  of  insurance  and/or  residence  under  the 
legislation  of  other  Member  States  have  to  be  taken  into  account,  the 
contribution  basis  in  Spain  which  is  closest  in  time  to  the  reference 
periods shall be used for the aforementioned periods, taking into account 
the development of the retail price index.  

(b)  The amount of the pension obtained shall be increased by the amount of 
the  increases  and  revaluations  calculated  for  each  subsequent  year  for 
pensions of the same nature. 

Periods  completed  in  other  Member  States  which  must  be  calculated  in  the 
special  scheme  for  civil  servants,  the  armed  forces  and  the  judicial 
administration, will be treated in the same way, for the purposes of Article 56 
of  the  Regulation,  as  the  periods  closest  in  time  covered  as  a  civil  servant  in 
Spain. 

H. FRANCE 

1. 

2. 

For persons receiving benefits in kind in France pursuant to Articles 17, 24 or 
26 of the Regulation who are resident in the French departments of Haut-Rhin, 
Bas-Rhin or Moselle, benefits in kind provided on behalf of the institution of 
another  Member  State  which  is  responsible  for  bearing  their  cost  include 
benefits  provided  by  both  the  general  sickness  insurance  scheme  and  the 
obligatory supplementary local sickness insurance scheme of Alsace-Moselle. 

French legislation applicable to a person engaged, or formerly engaged, in an 
activity as an employed or self-employed person for the application of Chapter 
5  of  Title  III  of  the  Regulation  includes  both  the  basic  old-age  insurance 
scheme(s)  and  the  supplementary  retirement  scheme(s)  to  which  the  person 
concerned was subject. 

I. IRELAND 

1. 

For the purposes of calculating the earnings for the granting of sickness benefit 
or  unemployment  benefit  under  Irish  legislation,  an  amount  equal  to  the 
average weekly wage in that year of employed persons shall, notwithstanding 
Articles 21(2)  and  62,  be  credited  to  the  employed  person  in  respect  of  each 
week  of  activity  as  an  employed  person  under  the  legislation  of  another 
Member State during the prescribed period. 

2.  Where Article 46 applies, if the person concerned suffers incapacity for work 
leading to invalidity while subject to the legislation of another Member State, 
Ireland  shall,  for  the  purposes  of  Section 95(1)(a)  of  the  Social  Welfare 
(Consolidation) Act, 1993, take account of any periods during which, in respect 
of  the  invalidity  that  followed  that  incapacity  for  work,  he  was  regarded  as 
being incapable of work under Irish legislation. 

EN 

14 

   EN 

 
J. ITALY 

None. 

K. CYPRUS 

For the purpose of applying the provisions of Articles 6, 51 and 61, for any period 
commencing on or after 6 October 1980, a week of insurance under the legislation of 
the Republic of Cyprus is determined by dividing the total insurable earnings for the 
relevant  period  by  the  weekly  amount  of  the  basic  insurable  earnings  applicable  in 
the relevant contribution year, provided that the number of weeks so determined shall 
not exceed the number of calendar weeks in the relevant period. 

L. LATVIA 

None. 

M. LITHUANIA 

None. 

N. LUXEMBOURG 

None. 

O. HUNGARY 

None. 

P. MALTA 

None. 

Q. NETHERLANDS 

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 2 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. 

EN 

15 

   EN 

 
 
 
(b)  The persons referred to in paragraph 1(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 
paragraph 1(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  paragraph 
1(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  paragraph 
1(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 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 
the  Algemene  wet  bijzondere 
ziektekosten  (Law  on  General  Insurance  Against  Special  Medical 
Expenses). 

in  kind  provided  for  by 

(f)  For  the  purposes  of  Articles  23  to  30,  the  following  benefits  shall  be 

treated as pensions due under Netherlands legislation: 

– 

– 

– 

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

for  civil  servants  and 

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 
(Wet 
personnel 
arbeidsongeschiktheidsvoorziening 
militairen) 
(Military Personnel Incapacity for Work Act); 

EN 

16 

   EN 

 
 
 
 
– 

- 

– 

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); 

awarded 

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

Nederlandse 

under 

the 

benefits awarded to retired persons before reaching the 
pensionable  age  of  65  years  under  a  pension  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  2  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. 

(h)  When  applying  Article  34,  the  Netherlands  will  provide  a  list  of 
estimates  of  the  amounts  which  are  as  close  as  possible  to  the  actual 
expenditure incurred. 

2. 

Application  of  the  Algemene  Ouderdomswet  (AOW)  (Netherlands  legislation 
on general old-age insurance)  

(a)  The 

to 

referred 

reduction 

in  Article 13(1)  of 

the  Algemene 
Ouderdomswet  (AOW)  (Netherlands  legislation  on  general  old-age 
insurance) shall not be applied for calendar years before 1 January 1957 
during  which  a  recipient  not  satisfying  the  conditions  for  having  such 
years treated as periods of insurance: 

- 

- 

- 

resided in the Netherlands between the ages of 15 and 65, or 

while residing in another Member State, worked in the Netherlands 
for an employer established in the Netherlands, or 

worked  in  another  Member  State  during  periods  regarded  as 
periods of insurance under the Netherlands social security system. 

By way of derogation from Article 7 of the AOW, anyone who resided or 
worked in the Netherlands in accordance with the above conditions only 
prior  to  1 January 1957  shall  also  be  regarded  as  being  entitled  to  a 
pension. 

EN 

17 

   EN 

 
 
 
 
 
(b)  The reduction referred to in Article 13(1) of the AOW shall not apply to 
calendar years prior to 2 August 1989 during which, between the ages of 
15  and  65,  a  person  who  is  or  was  married  was  not  insured  under  the 
above legislation, whilst being resident in the territory of a Member State 
other than the Netherlands, if these calendar years coincide with periods 
of  insurance  completed  by  the  person's  spouse  under  that  legislation  or 
with  calendar  years  to  be  taken  into  account  under  paragraph 2(a), 
provided that the couple's marriage subsisted during that time. 

By way of derogation from Article 7 of the AOW, such person shall be 
regarded as entitled to a pension. 

(c)  The reduction referred to in Article 13(2) of the AOW shall not apply to 
calendar years before 1 January 1957 during which a pensioner's spouse 
who  fails  to  satisfy  the  conditions  for  having  such  years  treated  as 
periods of insurance: 

- 

- 

- 

resided in the Netherlands between the ages of 15 and 65, or 

while residing in another Member State, worked in the Netherlands 
for an employer established in the Netherlands, or 

worked  in  another  Member  State  during  periods  regarded  as 
periods of insurance under the Netherlands social security system. 

(d)  The reduction referred to in Article 13(2) of the AOW shall not apply to 
calendar years prior to 2 August 1989 during which, between the ages of 
15 and 65, a pensioner's spouse resident in a Member State other than the 
Netherlands was not insured under the above legislation, if those calendar 
years  coincide  with  periods  of  insurance  completed  by  the  pensioner 
under  that  legislation  or  with  calendar  years  to  be  taken  into  account 
under  paragraph 2(a),  provided  that  the  couple's  marriage  subsisted 
during that time. 

(e)  Paragraphs 2(a),  2(b),  2(c)  and  2(d)  shall  not  apply  to  periods  which 

coincide with: 

- 

- 

periods  which  may  be  taken  into  account  for  calculating  pension 
rights  under  the  old-age  insurance  legislation  of  a  Member  State 
other than the Netherlands, or 

periods  for  which  the  person  concerned  has  drawn  an  old-age 
pension under such legislation. 

Periods  of  voluntary  insurance  under  the  system  of  another 
Member  State  shall  not  be  taken  into  account  for  the  purposes  of 
this provision. 

(f)  Paragraphs 2(a),  2(b),  2(c)  and  2(d)  shall  apply  only  if  the  person 
concerned has resided in one or more Member States for six years after 

EN 

18 

   EN 

 
 
 
 
 
the age of 59 and only for such time as that person is resident in one of 
those Member States. 

(g)  By way of derogation from Chapter IV of the AOW, anyone resident in a 
Member  State  other  than  the  Netherlands  whose  spouse  is  covered  by 
compulsory  insurance  under  that  legislation  shall  be  authorised  to  take 
out  voluntary  insurance  under  that  legislation  for  periods  during  which 
the spouse is compulsorily insured. 

This  authorisation  shall  not  cease  where  the  spouse's  compulsory 
insurance  is  terminated  as  a  result  of  his  death  and  where  the  survivor 
receives  only  a  pension  under 
the  Algemene  nabestaandenwet 
(Netherlands legislation on general law for surviving dependants). 

In  any  event,  the  authorisation  in  respect  of  voluntary  insurance  ceases 
on the date on which the person reaches the age of 65.  

The  contribution  to  be  paid  for  voluntary  insurance  shall  be  set  in 
accordance  with  the  provisions  relating  to  the  determination  of  the 
contribution  for  voluntary  insurance  under  the  AOW.  However,  if  the 
voluntary insurance follows on from a period of insurance as referred to 
in  paragraph 2(b),  the  contribution  shall  be  set  in  accordance  with  the 
provisions  relating 
the  contribution  for 
the  determination  of 
compulsory insurance under the AOW, with the income to be taken into 
account being deemed to have been received in the Netherlands. 

to 

(h)  The  authorisation  referred  to  in  paragraph 2(g)  shall  not  be  granted  to 
anyone insured under another Member State's legislation on pensions or 
survivors' benefits. 

(i)  Anyone  wishing  to  take  out  voluntary  insurance  under  paragraph 2(g) 
shall  be  required  to  apply  for  it  to  the  Social  Insurance  Bank  (Sociale 
Verzekeringsbank)  not  later  than  one  year  after  the  date  on  which  the 
conditions for participation are fulfilled. 

(j) 

For the purposes of Article 52(1)(b), only periods of insurance completed 
under the AOW after the age of 15 shall be taken into account as periods 
of insurance. 

3. 

Application  of  the  Algemene  nabestaandenwet  (ANW)  (Netherlands  general 
law on insurance for surviving dependants)  

(a)  A  person  who  has  been  compulsorily  insured  under  the  Algemene 
nabestaandenwet  (ANW)  (Netherlands  general  law  on  insurance  for 
surviving dependants) shall be deemed, for the purposes of Chapter 5 of 
Title III,  to  be  insured  under  that  legislation  at  the  time  when  the  risk 
materialises,  if  that  person  is  insured  under  the  legislation  of  another 
Member  State  for  the  same  risk  or,  failing  that,  in  the  case  where  a 
survivor's pension is due under the legislation of another Member State. 
The latter condition shall be deemed to have been fulfilled, however, in 
the case referred to in Article 57(1). 

EN 

19 

   EN 

 
 
 
 
 
 
(b)  Where the surviving spouse is entitled to a survivor's pension under the 
ANW  pursuant  to  paragraph 3(a),  that  pension  shall  be  calculated  in 
accordance with Article 52(1)(b). 

For  the  application  of  these  provisions,  periods  of  insurance  prior  to 
1 October 1959 shall also be regarded as periods of insurance completed 
under Netherlands legislation if during those periods the insured person, 
after the age of 15: 

- 

- 

- 

resided in the Netherlands, or 

while resident in another Member State, worked in the Netherlands 
for an employer established in the Netherlands, or 

worked  in  another  Member  State  during  periods  regarded  as 
periods of insurance under the Netherlands social security system. 

(c)  Account shall not be taken of the periods to be taken into consideration 
under  paragraph  3(b)  which  coincide  with  periods  of  compulsory 
insurance  completed  under  the  legislation  of  another  Member  State  in 
respect of survivor's pensions. 

(d)  For the purposes of Article 52(1)(b), only periods of insurance completed 
under  Netherlands  legislation  after  the  age  of  15  shall  be  taken  into 
account as periods of insurance. 

(e)  By way of derogation from Article 63a(1) of the ANW, a person resident 
in  a  Member State  other  than  the  Netherlands  whose  spouse  is 
compulsorily  insured  under  the  ANW  shall  be  authorised  to  take  out 
voluntary  insurance  under  that  legislation,  provided  that  such  insurance 
has already begun by [date of  Regulation 883/04 becoming applicable], 
but  only  for  periods  during  which  the  spouse  is  compulsorily  insured. 
This  authorisation  shall  cease  as  from  the  date  of  termination  of  the 
spouse's  compulsory  insurance  under  the  ANW,  unless  the  spouse's 
compulsory insurance is terminated as a result of his death and where the 
survivor only receives a pension under the ANW. 

In  any  event,  the  authorisation  in  respect  of  voluntary  insurance  ceases 
on the date on which the person reaches the age of 65.  

The  contribution  to  be  paid  for  voluntary  insurance  shall  be  set  in 
accordance  with  the  provisions  relating  to  the  determination  of 
contributions  for  voluntary  insurance  under  the  ANW.  However,  if  the 
voluntary insurance follows on from a period of insurance as referred to 
in  paragraph 2(b),  the  contribution  shall  be  set  in  accordance  with  the 
provisions relating to the determination of contributions for compulsory 
insurance  under  the  ANW,  with  the  income  to  be  taken  into  account 
being deemed to have been received in the Netherlands. 

4. 

Application of Netherlands legislation relating to incapacity for work 

EN 

20 

   EN 

 
 
 
 
 
 
(a)  A  person  who 

longer 

is  no 

insured  under 

the  Algemene 
Arbeidsongeschiktheidswet  (AAW)  (General  Act  on  Incapacity  for 
Work), the Wet arbeidsongeschiktheidsverzekering zelfstandigen (WAZ) 
(Self-Employed Persons Act on Incapacity for Work) and/or the Wet op 
de  arbeidsongeschiktheidsverzekering  (WAO)  (Act  on  Incapacity  for 
Work) shall be deemed, for the purposes of Chapter 5 of Title III, to be 
still  insured  at  the  time  when  the  risk  materialises,  if  that  person  is 
insured for the same risk under the legislation of another Member State 
or,  failing  that,  is  entitled  to  a  benefit  under  the  legislation  of  another 
Member State for the same risk. The latter condition shall, however, be 
deemed to be fulfilled in the case referred to in Article 57(1). 

(b) 

If,  pursuant  to  paragraph 4(a),  the  person  concerned  is  entitled  to  a 
Netherlands invalidity benefit, the amount referred to in Article 52(1)(b) 
for calculating that benefit shall be determined: 

(i) 

(ii) 

in accordance with the provisions laid down in the WAO if, prior to 
the occurrence of incapacity for work, the person last exercised an 
activity as an employed person within the meaning of Article 1(a); 

in accordance with the provisions laid down in the WAZ if, prior to 
the  occurrence  of  incapacity  for  work,  the  person  concerned  last 
exercised an activity as a self-employed person within the meaning 
of Article 1(b). 

(c) 

In  calculating  benefits  under  either  the  WAO  or  the  WAZ,  Netherlands 
institutions shall take account of: 

- 

- 

- 

periods of paid employment and periods treated as such, completed 
in the Netherlands before 1 July 1967; 

periods of insurance completed under the WAO; 

periods of insurance completed by the person concerned, after the 
age  of  15,  under  the  AAW,  insofar  as  these  do  not  coincide  with 
the periods of insurance completed under the WAO; 

- 

periods of insurance completed under the WAZ. 

5. 

Application of Netherlands legislation on family benefits 

(a)  A  person  to  whom  the  Algemene  Kinderbijslagwet  (AKW)  (General 
Family Benefits Act) becomes applicable during a quarter and who was, 
on the first day of that quarter, subject to the corresponding legislation of 
another  Member  State,  shall  be  regarded  as  being  insured  by  the 
Netherlands legislation as from that first day. 

(b)  The amount of family benefits which may be claimed by a person who is 
considered,  pursuant  to  paragraph 5(a),  as  being  insured  by  the  AKW, 
shall be determined in accordance with the arrangements laid down in the 
implementing Regulation referred to in Article 89. 

EN 

21 

   EN 

 
R. AUSTRIA 

1.  Attendance  at  a  school  or  comparable  educational  establishment  in  another 
Member  State  shall  be  regarded  as  equivalent  to  attendance  at  a  school  or 
educational  establishment  pursuant  to  Articles 227(1)(1)  and 228(1)(3)  of  the 
Allgemeines  Sozialversicherungsgesetz  (ASVG)  (general  social  security  act), 
Article 116(7)  of 
(GSVG) 
(Federal Act on Social Insurance for Persons engaged in Trade and Commerce) 
and  Article 107(7)  of  the  Bauern-Sozialversicherungsgesetz  (BSVG)  (social 
security act for farmers), when the person concerned was subject at any time to 
Austrian legislation on the grounds that he pursued an activity as an employed 
or  self-employed  person,  and 
for  under 
Article 227(3) of the ASVG, Article 116(9) of the GSVG and Article 107(9) of 
the BSGV are paid. 

the  Gewerbliches  Sozialversicherungsgesetz 

the  contributions  provided 

to  Articles 227a  and  228a  of 

2.  Where  [DG  12  of  the  new  Implementing  Regulation]  leads  to  periods  of 
childcare  pursuant 
the  Allgemeines 
Sozialversicherungsgesetz  (ASVG)  (general  social  security  act),  Articles 116a 
and 116b of the Gewerbliches Sozialversicherungsgesetz (GSVG) (Federal Act 
on  Social  Insurance  for  Persons  engaged  in  Trade  and  Commerce)  and 
Articles 107a  and  107b  of  the  Bauern-Sozialversicherungsgesetz  (BSVG) 
(social  security  act  for  farmers)  being  superseded  by  insurance  periods 
completed in another Member State, the theoretical amount calculated pursuant 
to Article 52(1)(b)(i) must be increased by the amount which would arise under 
Austrian  legislation  if  the  periods  of  childcare  were  taken  into  account  for 
those insurance periods. 

3. 

For the calculation of the pro rata benefit referred to in Article 52(1)(b), special 
increments  for  contributions  for  supplementary  insurance  and  the  miner's 
supplementary benefit under Austrian legislation shall be disregarded. In these 
cases  the  pro  rata  benefit  calculated  without  those  contributions  shall,  if 
appropriate, be increased by unreduced special increments for contributions for 
supplementary insurance and the miner's supplementary benefit. 

to  Articles 238  and  239  of 

4.  Where  pursuant  to  Article 6  substitute  periods  under  an  Austrian  pension 
insurance  scheme  have  been  completed,  but  these  cannot  form  a  basis  for 
calculation  pursuant 
the  Allgemeines 
Sozialversicherungsgesetz  (ASVG)  (general  social  security  act),  Articles 122 
and 123 of the Gewerbliches Sozialversicherungsgesetz (GSVG) (Federal Act 
on Social Insurance for Persons engaged in Trade and Commerce) and Articles 
113 and 114 of the Bauern-Sozialversicherungsgesetz (BSVG) (social security 
act  for  farmers),  the  calculation  basis  for  periods  of  childcare  pursuant  to 
Article 239  of  the  ASVG,  Article 123  of  the  GSVG  and  Article 114  of  the 
BSVG shall be used. 

5. 

The  application  of  this  Regulation  shall  not  have  the  effect  of  reducing  any 
entitlement  to  benefits  for  persons  who  have  suffered  in  their  social  security 
situation for political or religious reasons or for reasons of their descent. 

S. POLAND. 

EN 

22 

   EN 

 
None. 

T. PORTUGAL 

None. 

U. SLOVENIA 

None. 

V. SLOVAKIA 

None. 

W. FINLAND 

1.  A  person  who  is  no  longer  insured  under  the  National  Pensions  scheme  is 
regarded,  when  applying  the  provisions  of  Chapter  5  of  Title  III  of  this 
Regulation,  as  retaining  the  status  of  an  insured  person  if,  when  the  risk 
materialises,  he  or  she  is  insured  for  the  same  risk  under  the  legislation  of 
another Member State or, failing that, is entitled to a benefit for the same risk 
under  the  legislation  of  another  Member  State.  The  latter  condition  shall, 
however, be deemed to be fulfilled in the case referred to in Article 57(1). 

2. 

For  the purposes  of  determining entitlement  and of calculating the amount of 
the Finnish national pension under Articles 52 to 54, pensions acquired under 
the legislation of another Member State are treated in the same way as pensions 
acquired under Finnish legislation. 

3.  When applying Article 52(1)(b)(i) for the purpose of calculating of earnings for 
the  credited  period  under  Finnish  legislation  on  earnings-related  pensions, 
where  an  individual  has  pension  insurance  periods  based  on  activity  as  an 
employed  or  self-employed  person  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. 

X. SWEDEN 

1.  When parental leave allowance is paid under the provisions in Article 67 to a 
family member who is not employed, the parental leave allowance is paid at a 
level corresponding to the basic or lowest level. 

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). 

3. 

For  the  purpose  of  calculating  notional  income  for  earnings-related  sickness 
benefit and earnings-related activity allowance in accordance with Chapter 8 of 

EN 

23 

   EN 

 
the  Lag  (1962:381)  om  allmän  försäkrings  (the  National  Insurance  Act),  the 
following shall apply: 

(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 46 and persons are 
not  insured  in  Sweden,  the  reference  period  shall  be  determined  in 
accordance  with  Chapter  8,  paragraphs  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. 

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) 

For  the  purpose  of  calculating  notional  pension  credits  for  widow’s 
pensions relating 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. 

Y. UNITED KINGDOM 

1.  Where,  in  accordance  with  United  Kingdom  legislation,  a  person  may  be 

entitled to a retirement pension if: 

(a) 

(b) 

the  contributions  of  a  former  spouse  are  taken  into  account  as  if  they 
were that person's own contributions; or 

the relevant contribution conditions are satisfied by that person's spouse 
or former spouse, 

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24 

   EN 

 
 
 
then  provided,  in  each  case,  that  the  spouse  or  former  spouse  is  or  had 
been exercising an activity as an employed or self-employed person, and 
had  been  subject  to  the  legislation  of  two  or  more  Member  States,  the 
provisions of Chapter 5 of Title III of this Regulation shall apply in order 
to determine entitlement under United Kingdom legislation. In this case, 
references  in  the  said  Chapter  5  to  "periods  of  insurance"  shall  be 
construed as references to periods of insurance completed by: 

(i) 

a spouse or former spouse where a claim is made by: 

- 

- 

a married woman; or 

a  person  whose  marriage  has  terminated  otherwise  than  by 
the death of the spouse, or 

(ii) 

a former spouse, where a claim is made by: 

- 

- 

a  widower  who  immediately  before  pensionable  age  is  not 
entitled to widowed parent’s allowance; or 

a  widow  who  immediately  before  pensionable  age  is  not 
entitled  to  widowed  mother’s  allowance,  widowed  parent’s 
allowance or widow’s pension, or who is only entitled to an 
age-related  widow’s  pension  calculated  pursuant  to  Article 
52(1)(b), and for this purpose “age-related widow’s pension” 
means  a  widow’s  pension  payable  at  a  reduced  rate  in 
accordance  with  section  39(4)  of 
the  Social  Security 
Contributions and Benefits Act 1992. 

2. 

For the purposes of applying Article 6 to the provisions governing entitlement 
to  attendance  allowance,  carer’s  allowance  and  disability  living  allowance,  a 
period of employment, self-employment or residence completed in the territory 
of a Member State other than the United Kingdom shall be taken into account 
insofar  as  is  necessary  to  satisfy  conditions  as  to  presence  in  the  United 
Kingdom, prior to the day on which entitlement to the benefit in question first 
arises. 

3.  Article 7 shall apply to any beneficiary of United Kingdom invalidity, old-age 
or  survivors’  cash  benefits,  pensions  for  accidents  at  work  or  occupational 
diseases  and  death  grants,  who  is  staying  in  the  territory  of  another  Member 
State. 

4.  Where Article 46 applies, if the person concerned suffers incapacity for work 
leading to invalidity while subject to the legislation of another Member State, 
the  United  Kingdom  shall,  for  the  purposes  of  Section  30A  (5)  of  the  Social 
Security  Contributions  and  Benefits  Act  1992,  take  account  of  any  periods 
during which the person concerned has received, in respect of that incapacity 
for work: 

(i) 

cash sickness benefits or wages or salary in lieu thereof, 

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25 

   EN 

 
5. 

6. 

(ii)  benefits  within  the  meaning  of  Chapters  4  and  5  of  Title  III  granted  in 

respect of the invalidity which followed that incapacity for work, 

under the legislation of the other Member State, as though they were periods of 
short-term incapacity benefit paid in accordance with Sections 30A (1)-(4) of 
the Social Security Contributions and Benefits Act 1992. 

In applying Article 46, account shall only be taken of periods during which the 
person  was  incapable  of  work  within  the  meaning  of  United  Kingdom 
legislation. 

(1)  For  the  purpose  of  calculating  an  earnings  factor  in  order  to  determine 
entitlement to benefits under United Kingdom legislation, for each week 
of  activity  as  an  employed  person  under  the  legislation  of  another 
Member  State,  and  which  commenced  during  the  relevant  income  tax 
year  within  the  meaning  of  United  Kingdom  legislation,  the  person 
concerned  shall  be  deemed  to  have  paid  contributions  as  an  employed 
earner,  or  have  earnings  on  which  contributions  have  been  paid,  on  the 
basis  of  earnings  equivalent  to  two-thirds  of  that  year's  upper  earnings 
limit. 

(2)  For the purposes of Article 52(1)(b)(ii), where: 

(a) 

in any income tax year starting on or after 6 April 1975, a person 
carrying out activity as an employed person has completed periods 
of  insurance,  employment  or  residence  exclusively  in  a  Member 
State  other  than  the  United  Kingdom,  and  the  application  of 
paragraph  6(1)  above  results  in  that  year  being  counted  as  a 
qualifying year within the meaning of United Kingdom legislation 
for the purposes of Article 52(1)(b)(i), he shall be deemed to have 
been insured for 52 weeks in that year in that other Member State; 

(b) 

any  income  tax  year  starting  on  or  after  6  April  1975  does  not 
count as a qualifying year within the meaning of United Kingdom 
legislation  for  the  purposes  of  Article  52(1)(b)(i),  any  periods  of 
insurance, employment or residence completed in that year shall be 
disregarded. 

(3)  For  the  purpose  of  converting  an  earnings  factor  into  periods  of 
insurance,  the  earnings  factor  achieved  in  the  relevant  income  tax  year 
within  the  meaning  of  United  Kingdom  legislation  shall  be  divided  by 
that year's lower earnings limit. The result shall be expressed as a whole 
number,  any  remaining  fraction  being  ignored.  The  figure  so  calculated 
shall  be  treated  as  representing  the  number  of  weeks  of  insurance 
completed  under  United  Kingdom  legislation  during  that  year  provided 
that  such  figure  shall  not  exceed  the  number  of  weeks  during  which  in 
that year the person was subject to that legislation.". 

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   EN