CELEX: 51984PC0756
Language: en
Date: 1985-01-09
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) AMENDING 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 REGULATION ( EEC ) NO 574/72 LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71

No C 47/8                            Official Journal of the European Communities                                 19.2.85
              Proposal for a Council Regulation amending 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 Regulation (EEC)
               No 574/72 laying down the procedure for implementing Regulation (EEC) No 1408/71
                                                   COM(84) 756 final
                           (Submitted by the Commission to the Council on 24 January 1985)
                                                      (85/C 47/07)
THE COUNCIL OF THE EUROPEAN                                     for the purposes of calculating the surviving spouse's
COMMUNITIES,                                                    pension;
Having regard to the Treaty establishing the                    Whereas it is necessary to make provision in the said
European Economic Community, and in particular                  Annex VI enabling German institutions to reimburse
Articles 51 and 235 thereof,                                    contributions in respect of pension insurance paid by
                                                                Greek teachers insured simultaneously in Germany
                                                                and Greece;
Having regard to the proposal from the Commission,
drawn up after consulting the Administrative
Commission on Social Security for Migrant Workers,
                                                                Whereas new legislation in Greece concerning
                                                                voluntary insurance schemes requires provision to be
Having regard to the opinion of the European Par-               made in the said Annexe VI incorporating the special
liament,                                                        procedure for applying this legislation and its
                                                                conditions of eligibility to nationals of Member States
                                                                 other than Greece;
Having regard to the opinion of the Economic and
Social Committee,
                                                                Whereas provisions in the said Annex VI concerning
Whereas certain amendments should be made to                     United Kingdom legislation, which permits wives or
Regulations (EEC) No 1408/71 ('), No 574/72 (2), as              former wives to substitute periods of insurance
both last amended by Regulation (EEC) No 2001/83                 completed by their husbands or former husbands in
( 3 ); whereas some of these amendments result from              two or more Member States for their own insurance
changes which have occurred in Member States'                    record where this is more favourable, require
social security legislation, other amendments being of           amendment to take account of the extension of this
a technical nature and prompted by the experience                concession in certain cases to former husbands in
gained from their implementation;                                respect of the insurance periods of their former wives,
                                                                 and to correct certain inadequacies in the wording of
                                                                 the existing text;
Whereas changes in the Danish legislation concerning
social pensions make it necessary to amend existing
entries in Annex VI to Regulation (EEC) No
 1408/71;                                                        Whereas the interaction between United Kingdom
                                                                 legislation concerning the calculation of old-age
                                                                 pensions and the provisions of Regulation (EEC) No
Whereas it is necessary to make provision in the said            1408/71 concerning the aggregation of periods of
Annex VI for the waiving of the condition of                     insurance, employment or residence completed in
residence in Denmark for the acquisition of the right            other Member States where, after the 6 April 1975,
to pension in respect of employed or self-employed               those periods were completed in a Member State
persons or their survivors residing in a Member State            other than the United Kingdom, produces, in
other than Denmark and for ensuring the taking into              conjunction with the special procedure included in
account, under certain conditions, of periods of                 the said Annex VI, anomalous and inequitable results;
employment or self-employment completed in
Denmark by an employed or self-employed person
                                                                 Whereas it is necessary therefore to make an
(») OJ No L 149, 5. 7. 1971, p. 2.                               additional provision in the said Annex VI to the
O OJ No L 74, 27. 3. 1972, p. 1.                                 existing special procedure for applying the said
C) OJ No L 230, 22. 8. 1983, p. 6.                               legislation so as to correct the effects referred to;
 ---pagebreak--- 19.2.85                             Official Journal of the European Communities                           No C 47/9
Whereas the instances in which a person should be              HAS ADOPTED THIS REGULATION:
subject simultaneously to the legislation of two
Member States as an exception to the general rule                                       Article 1
should be as limited in number and scope as possible;
                                                               Regulation (EEC) No 1408/71 is hereby amended as
Whereas the wording of point 6 in Annex VII, which             follows:
lists the instances in which these exceptions are to be
permitted, concerning self-employment in Greece, is
                                                               1. Annex VI
unnecessarily widely drawn and should be more
specific to reflect the fact that the only scheme to           (a) In Section B, Denmark:
which self-employed persons are to be compulsorily
affiliated in Greece, whilst subject to a scheme for                (i) Point 3 is replaced by the following:
employed persons in another Member State, is a
pension insurance scheme;                                               '3. (a) The provisions of Danish legislation
                                                                                on social pensions that stipulate that
Whereas point 6 of Annexe VII should be amended                                 the right to pension is subject to the
accordingly;                                                                    claimant being resident in Denmark
Whereas the experience gained from implementing                                 are not applicable in respect of
Regulations (EEC) No 1408/71 and No 574/72 has                                  employed or self-employed persons
revealed the need to improve the provisions dealing                             or their survivors who reside in the
with the overlapping of family benefits or family                               territory of a Member State other
allowances in Regulation (EEC) No 574/72;                                       than Denmark;
Whereas the rule in Article 10 of Regulation (EEC)                          (b) For the purpose of calculating the
N o 574/72 which provides that the right to family                              pension, periods of employment or
benefits arises under the legislation of the Member                             self-employment      completed      in
State in the territory of which the children reside                             Denmark by a frontier worker or a
takes effect solely where the person who exercises the                          seasonal worker are regarded as
professional or trade activity in the Member State of                           periods of residence completed in
residence activating the transfer of priority is the                            Denmark by the surviving spouse in
spouse of the employed or formerly employed person,                             so far as the surviving spouse was,
whether that spouse is himself or herself entitled to                           during these periods, linked to the
the benefit or not;                                                             frontier worker or seasonal worker
                                                                                by marriage without separation from
Whereas those provisions have been seen to operate                              bed and board or de facto separation
unfairly in circumstances in which the person entitled                          on grounds of incompatibility, and
to the benefit and exercising the professional or trade                         provided that during these periods
activity was not or was no longer the spouse of the                             the spouse resided in the territory of
employed or formerly employed person and they                                   another Member State;
should therefore be amended so as to correct this
anomaly;                                                                    (c) For the purpose of calculating the
                                                                                pension, periods of employment or
Whereas it is necessary to introduce some textual                               self-employment      completed      in
amendments to Annexes 2, 3 and 4 to Regulation                                  Denmark before 1 January 1984 by
(EEC) No 574/72 as a result of the aforementioned                               an employed or self-employed person
changes in Danish legislation;                                                  other than a frontier worker or
                                                                                seasonal worker shall be regarded as
Whereas it is necessary to amend Annex 9 to Regu-
                                                                                periods of residence completed in
lation (EEC) No 574/72 to take account of the
                                                                                Denmark by the surviving spouse, in
extension of Regulations (EEC) N o 1408/71 and No
                                                                                so far as the surviving spouse was,
574/72 to self-employed persons for the calculation
                                                                                during these periods, linked to the
of the average annual cost of benefits in kind;
                                                                                employed or self-employed person by
Whereas it is necessary to amend Annex 10 to Regu-                              marriage without separation from bed
lation (EEC) N o 574/72 following changes in the                                and board or de facto separation on
designation of the competent institution for paying                             grounds of incompatibility, and
pension supplements for dependent children of                                   provided that during these periods
pensioners in Germany;                                                          the spouse resided in the territory of
                                                                                another Member State;
Whereas it is necessary to make provision in the said
Annex 10 in order to specify the competent optional                         (d) Periods to be taken into account
continued insurance scheme in Greece if the                                     under the terms of (b) and (c) shall
conditions for joining more than one such scheme are                            not be taken into consideration if
met,                                                                            they coincide with periods taken into
 ---pagebreak--- No C 47/10                           Official Journal of the European Communities                               19.2.85
                  account for the calculation of the                Subject to the other conditions of this Law being
                  pension due to the person concerned               met, contributions may be made:
                  under the legislation on compulsory
                  insurance of another Member State                 (a) where the person concerned is domiciled or
                  or with periods during which the                       resides in the territory of a Member State and
                  person concerned received a pension                    has at some time in the past been
                  under such legislation. These latter                   compulsorily affiliated to the Greek pension
                  periods shall however be taken into                    insurance scheme; or
                  consideration if the annual amount of             (b) regardless of the place of domicile or
                  the said pension is less than half the
                                                                         residence, where the person concerned has
                  basic amount of the social pension.'
                                                                         either previously resided in Greece for ten
                                                                         years, whether consecutive or not, or has pre-
     (ii) Point 4 is deleted.                                            viously been subject to Greek legislation
    (iii) At point 8 the words 'Invalidity, old-age and                  whether compulsorily or voluntarily for a
          widows' pensions' are replaced by the words                    period of 1 500 days.'
          'Invalidity pensions, early pensions, old-age
          pensions and widows' pensions.'                       (d) In Section J. United Kingdom:
    (iv) Points 5 to 10: are renumbered accordingly.                  (i) Point 2 is replaced by the following:
(b) In Section C, Germany, the following point 16 is                      '2.      Where, in accordance with United
    added:                                                                Kingdom legislation, a person may be
                                                                          entitled to a retirement pension if:
    '16.     Greek teachers with civil service status
    who by virtue of their employment in German                           (a) the contributions of a former spouse are
    schools have paid compulsory contributions to                               taken into account as if they were that
    German statutory pension insurance in addition                              person's own contributions; or
    to contributions to the Greek special scheme for                      (b) the relevant contribution conditions are
    civil servants and who ceased to be covered by                              satisfied by that person's spouse or
    German compulsory insurance after 31 December                               former spouse
    1978 shall on application receive a contribution
    refund in respect of these compulsory contri-                         then provided, in each case, that the spouse
    butions in accordance with Article 1303 of the                        or former spouse is or was an employed or
    insurance code (RVO) or Article 82 of the                             self-employed person who had been subject
    clerical staff insurance law (AVG). Claims for                        to the legislation of two or more Member
    contribution refunds shall be valid if made either                    States, the provisions of Chapter 3 of Title
    within one year of the date of entry into force of                    III of the Regulation shall apply in order to
    this provision, or within two years of the date                       determine        entitlement   under    United
    upon which the person applying for the refund                         Kingdom legislation; and references in the
    ceased to be subject to compulsory insurance.                         said Chapter 3 to "periods of insurance"
                                                                          shall be construed as references to periods of
  ' Article 1303 (7) of the insurance code (RVO) and                      insurance completed by:
    Article 82 (7) of the clerical staff insurance law
    (AVG) shall apply only in respect of periods for                        (i) a spouse or former spouse, where a claim
    which compulsory contributions under German                                 is made by a married woman, a man who
    pension insurance were paid in addition to contri-                          is widowed or a person whose marriage
    butions to the Greek special scheme for civil                               has terminated otherwise than by the
    servants and in respect of interrupted periods                              death of the spouse, or
    immediately following periods in which such                            (ii) a former spouse, where a claim is made
    compulsory contributions had been paid.'                                    by a widow, who was not in receipt of a
                                                                                survivor's benefit immediately before
(c) In Section E, Greece the following point 3 is                               reaching pensionable age or who is only
    added:                                                                       in receipt of an age-related widow's
                                                                                pension calculated pursuant to Article 46
    '3.     Law No 1469/84 concerning voluntary                                  (2) of the Regulation.'
    affiliation to the pension insurance scheme for
    Greek nationals and foreign nationals of Greek                   (ii) In point 13 the following paragraph 2 is
    origin, is applicable to nationals of other Member                     inserted after paragraph (1):
    States, stateless persons and refugees residing in
    the territory of a Member State in accordance                          '2.     For the purposes of Article 46 (2) (b)
    with the following provisions.                                         of the Regulation, where
 ---pagebreak---  19.2.85                                  Official Journal of the European Communities                              No C 47/11
             (a) in any income tax year starting on or                                benefits or family allowances, or the
                   after 6 April 1975 an employed person                              person to whom they are payable; then
                   had completed periods of insurance,                                the right to family benefits or family
                   employment or residence exclusively in a                           allowances due in pursuance of those
                   Member State other than the United                                 Articles shall be suspended and only
                   Kingdom, and the application of                                    those family benefits         or    family
                   paragraph 1 (a) (i) results in that year                           allowances of the Member State in
                   being counted as a qualifying year within                          whose territory the member of the
                   the meaning of United             Kingdom                          family is residing shall be paid, the cost
                   legislation for the purposes of Article 46                         to be borne by that Member State.
                   (2) (a) of the Regulation, he shall be
                                                                                 (ii) in the case of benefits due in pursuance
                   deemed to have been insured for 52
                                                                                      of Articles 77 or 78 of the Regulation,
                   weeks in that year in that other Member
                                                                                      the person entitled to those benefits or
                   State;
                                                                                      the person to whom they are payable,
                                                                                      and in the case of benefits due in
             (b) any income tax year starting on or after
                                                                                      pursuance of Article 78, the person in
                   6 April 1975 does not count as a
                                                                                      respect of whom they are payable;
                   qualifying year within the meaning of
                                                                                      where this is the case the person
                   United Kingdom legislation for the
                                                                                      concerned shall be entitled to the
                   purposes of Article 46 (2) (a) of the
                                                                                      family benefits or family allowances of
                   Regulation, any periods of insurance,
                                                                                      the Member State in whose territory
                   employment or residence completed in
                                                                                      the children reside, the cost to be
                   that year shall be disregarded.',
                                                                                      borne by that Member State, and,
                   and the present paragraph 2 becomes                                where appropriate, to benefits other
                   paragraph 3.                                                       than the family allowances referred to
                                                                                      in Articles 77 or 78 of the Regulation,
                                                                                      the cost to be borne by the competent
2. Annex         VII                                                                  State as defined by those Articles.'
      Point 6 is replaced by the following:
                                                                     2. Annex 2, Section B, Denmark,            is amended as
      '6.     For the pension insurance scheme for self-                follows:
      employed persons: where he is self-employed in
      Greece and gainfully employed in any other                        (a) The text of paragraph 1 (b) (i), in the left-
      Member State.'                                                         hand column, is replaced by the following:
                                                                             'Benefits granted     under the legislation     on
                              Article 2
                                                                             social pensions'.
Regulation (EEC) No 574/72 is hereby amended as
follows:                                                                (b) The text of paragraph 1 (c) (i), in the left-
                                                                             hand column, is replaced by the following:
1. In Article 10, paragraph 1 is replaced by the
   following:                                                                Tensions granted under the legislation on
                                                                             social pensions'.
   ' 1 . (a) Entitlement to family benefits or family
               allowances due under the legislation of a             3. Annex 3, Section B, Denmark,           is amended as
               Member State, according to which                         follows:
               acquisition of the right to those benefits or
               allowances is not subject to conditions of               The text of paragraph 1 (c) (i), in the left-hand
               insurance, employment or self-employment                 column, is replaced by the following:
               shall be suspended when, during the same
                                                                        Tensions granted under the legislation on social
               period and for the same member of the
                                                                        pensions'.
               family, benefits are due in pursuance of
               Articles 73, 74, 77 or 78 of the Regulation.
                                                                     4. Annex 4, Section B, Denmark,           is amended as
          (b) Where, however, a professional or trade                   follows:
               activity is exercised or pursued in the
               territory of the said Member State by:                   In part I, the text of paragraph 2, in the left-hand
                (i) in the case of benefits due in pursuance            column, is replaced by the following:
                     of Articles 73 or 74 of the Regulation,            Tensions and benefits provided              under   the
                     the person entitled to the family                  legislation on social pensions'.
 ---pagebreak--- No C 47/12                         Official Journal of the European Communities                                 19. 2. 85
5. Annex 9 is amended as follows:                                     'Family allowances paid pursuant to Articles 77
                                                                      and 78 of the Regulation':
   (a) In Section A, Belgium, the following text is
       added:                                                     (b) In Section E, Greece, the following paragraph
       'However, for the purposes of applying                         1 is inserted:
       Articles 94 and 95 of the implementing Regu-                   ' 1. For the purposes of applying
       lation to cases in which Article 35 (2) of the                      Article 6 (1) of the
       Regulation applies, the scheme for compulsory                       implementing Regulation:
       health care insurance for self-employed
       persons shall be taken into consideration when                      'I8pu|i,a, KoivcoviKcbv
       calculating the average annual cost of benefits                     Aa(paXiaea)v (IKA) A$f|va
       in kind.'                                                           (Social Insurance Institute, Athens)';
                                                                      and paragraphs          1 to   10 are renumbered
   (b) In Section D, France, the following text is                    accordingly.
       added:
       'However, for the purposes of Articles 94 and                                       Article 3
       95 of the implementing Regulation in cases
       where Article 35 (2) of the Regulation applies,         1.    This Regulation shall enter into force on the day
       the sickness and maternity insurance scheme            of its publication in the Official Journal of the
       for self-employed persons in non-agricultural          European Communities.
       occupations shall be taken into consideration          2.     Article 1, except for paragraph (1) (c), and
       when calculating the average annual cost of            Article 2 (2), (3) and (4) shall apply with effect from
       benefits in kind'.                                      1 January 1984.
6. Annex Wis amended as follows:                              3.     Article 1 (1) (c) shall apply with effect from 1
   (a) In Section C, Germany, the text of paragraph 7         January 1985.
       (a), in the left-hand column, is replaced by the       This Regulation shall be binding in its entirety and
       following:                                             directly applicable in all Member States.