2006/442/EC: Decision No 207 of  7 April 2006  concerning the interpretation of Article 76 and Article 79(3) of Regulation (EEC) No 1408/71 and of Article 10(1) of Regulation (EEC) No 574/72 relating to the overlapping of family benefits and allowances (Text of relevance to the EEA and to the EU/Switzerland Agreement)
Date: 2006-04-07
Institutions: Administrative Commission on Social Security for Migrant Workers, European Commission
Subjects: cumulative pension entitlement, family benefit, migrant worker, social security

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COMMISSION

ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY
FOR MIGRANT WORKERS

DECISION No 207

of 7 April 2006

concerning the interpretation of Article 76 and Article 79(3) of Regulation (EEC) No 1408/71 and of
family benefits
Article 10(1) of Regulation (EEC) No 574/72 relating to the overlapping of

and allowances

(Text of relevance to the EEA and to the EU/Switzerland Agreement)

(2006/442/EC)

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT
WORKERS,

Having regard to Article 81(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application
of social security schemes to employed persons, to self-employed persons and to members of their families
moving within the Community (1), under the terms of which it is responsible for dealing with any admin-
istrative question arising from Regulation (EEC) No 1408/71 and subsequent Regulations,

Having regard to Articles 76 and 79(3) of the said Regulation and to Article 10(1) of Council Regulation
(EEC) No 574/72 (2),

Whereas:

(1)

It is essential to know the scope of family benefits or family allowances payable ‘by reason of
carrying on an occupation’ or ‘by virtue of the pursuit of a professional or trade activity’ found in
Article 76 and Article 79(3) of Regulation (EEC) No 1408/71.

(2) Where family benefits are payable to two different persons in the course of the same period for the
same member of the family under the legislation of one State and also under the legislation of the
State in the territory of which the members of the family are residing, entitlement to family benefits
or family allowances under the legislation of the first State shall be suspended, up to the amount of
family benefits provided by the legislation of the latter State, under Article 76 of Regulation (EEC) No
1408/71 if the family benefits are payable ‘by reason of carrying on an occupation’ under the
legislation of the latter State. Article 79(3) of Regulation (EEC) No 1408/71 contains a similar
provision concerning benefits for pensioners and orphans.

(3)

(4)

Article 76 and Article 79(3) of Regulation (EEC) No 1408/71 do not distinguish between benefits or
allowances payable by reason of a non-salaried occupation or professional or trade activity and those
payable by reason of a salaried occupation or professional or trade activity.

Furthermore, the legislations of certain Member States provide that periods of suspension or inter-
ruption of actual occupation or professional or trade activity by reason of holidays, unemployment,
temporary incapacity for work, strikes or lock-outs, shall be treated either as periods of occupation or
professional or trade activity for the acquisition of entitlement to family benefits or family allowances
or shall be regarded as periods of inactivity giving rise, where appropriate, either per se or as the
result of a preceding occupation or professional or trade activity, to the payment of family benefits or
family allowances.

(1) OJ L 149, 5.7.1971, p. 2. Regulation last amended by Regulation (EC) No 629/2006 of the European Parliament and

of the Council (OJ L 114, 27.4.2006, p. 1).

(2) OJ L 74, 27.3.1972, p. 1. Regulation last amended by Regulation (EC) No 629/2006.

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(5)

(6)

(7)

(8)

(9)

In order to avoid any uncertainties or differences in interpretation, it is essential to define the scope
of the expressions ‘carrying on an occupation’ and ‘pursuit of a professional or trade activity’.

It is also essential to know the scope of the term ‘professional or trade activity’ as referred to in
Article 10(1) of Regulation (EEC) No 574/72.

If family benefits or allowances are payable to two different persons in the course of the same period
for the same member of the family under the legislation of one State and also under the legislation of
another State according to which the acquisition of the right to benefits is not subject to conditions
governing insurance, employment or self-employment, entitlement to family benefits under the
legislation of the first State shall be suspended, up to the sum of family benefits provided for by
the legislation of the latter State, under Article 10(1)(b)(i) of Regulation (EEC) No 574/72 where a
professional or trade activity is carried out in the latter State. Article 10(1)(b)(ii) of Regulation (EEC)
No 574/72 contains a similar provision concerning benefits for pensioners and orphans.

In the matter of overlapping of family benefits or allowances, the purpose of Article 10(1) is to
impart to the pursuit of a professional or trade activity in a Member State where entitlement to
family benefits or allowances does not result from the pursuit of such activity the same effect as in
Member States where this entitlement does arise from the pursuit of such activity. Articles 76 and
79(3) of Regulation (EEC) No 1408/71 and Article 10(1) of Regulation (EEC) No 574/72 should be
interpreted in the same way.

In a case where a worker's status of active employment was suspended due to this person's unpaid
leave following the birth of a child and for the purpose of bringing up this child, the Court of Justice
of the European Communities referred to Article 73 of Regulation (EEC) No 1408/71 in conjunction
with Article 13(2)(a) of Regulation (EEC) No 1408/71 (1). Such unpaid leave must therefore also be
qualified as carrying out an occupation or professional or trade activity for the purposes of Articles
76 and 79(3) of Regulation (EEC) No 1408/71 and as well as for the purposes of Article 10(1) of
the above mentioned
Regulation (EEC) No 574/72.
provisions can only apply for as long as the person concerned has the status of an employed or
self-employed person within the meaning of Article 1(a) of Regulation (EEC) No 1408/71 which
requires that the person concerned is covered in at least one branch of social security. This excludes
persons on unpaid leave who are no longer covered by any social security scheme of the relevant
Member State.

the Court reiterated that

In this context

(10)

There can only be a non-exhaustive list of cases where during a period of leave a person is deemed to
be exercising an occupation or a professional or trade activity, due to the variety of systems for
unpaid leave in Member States and ongoing changes in national
legislation. Therefore it is not
appropriate to define all the cases in which such unpaid leave is equivalent to an occupation or
professional or trade activity and those where the necessary close link to the gainful activity does not
exist.

After deliberation in the light of the conditions laid down in Article 80(3) of Regulation (EEC)
No 1408/71,

HAS DECIDED AS FOLLOWS:

1. For the purposes of Article 76 and Article 79(3) of Regulation (EEC) No 1408/71, family benefits or
family allowances shall be regarded as payable ‘by reason of carrying on an occupation’ or ‘by virtue of
the pursuit of a professional or trade activity’ in particular:

(a) by the actual carrying on of an occupation or the pursuit of a professional or trade activity whether

salaried or not; and also

(1) Judgment of 7 June 2005 in case C-543/03, ‘Dodl and Oberhollenzer/Tiroler Gebietskrankenkasse’.

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(b) in the course of any period of temporary suspension of such occupation or professional or trade

activity

(i) as a result of sickness, maternity, accident at work, occupational disease or unemployment, as
long as wages or benefits, excluding pensions, are payable in respect of these contingencies; or

(ii) during paid leave, strike or lock-out; or

(iii) during unpaid leave for the purpose of child-raising, as long as this leave is deemed equivalent to
such occupation or professional or trade activity in accordance with the relevant legislation.

2. For the purposes of Article 10(1) of Regulation (EEC) No 574/72 there shall be regarded as ‘carrying out

a professional or trade activity’ in particular:

(a)

the actual exercise of any professional or trade activity, whether salaried or not; and also

(b) the temporary suspension of such professional or trade activity

(i) as a result of sickness, maternity, accident at work, occupational disease or unemployment, as
long as wages or benefits, excluding pensions, are payable in respect of these contingencies; or

(ii) during paid leave, strike or lock-out; or

(iii) during unpaid leave for the purpose of child-raising, as long as this leave is deemed equivalent to

such professional or trade activity in accordance with the relevant legislation.

3. This Decision shall replace Decision No 119 of 24 February 1983. It shall enter into force on the first

day following its publication in the Official Journal of the European Union.

The Chairman of the Administrative Commission

Bernhard SPIEGEL