CELEX: 51982PC0771
Language: en
Date: 1982-12-17
Title: Proposal for a COUNCIL REGULATION (EEC) amending Regulation (EEC) 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community and Regulation (EEC) No 574/72 laying down the procedure for implementing Regulation (EEC) 1408/71 (submitted to the Council by the Commission)

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COM (82) 771
Vol. 1982/0231
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 ---pagebreak---   COMMISSION OF THE EUROPEAN COMMUNITIES
                                                                   COM(82)771 final
                                                                   Brussels , 17 December 1982
                                        Proposal for a
                               COUNCIL REGULATION ( EEC )
amending Regulation ( EEC ) 1408 / 71 on the application of social security schemes
to employed persons , to self-employed persons and to their families moving within
the Community and Regulation ( EEC ) No 574 / 72 laying down the procedure for imple­
                          menting Regulation ( EEC ) 1408 / 71
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                    ( submitted to the Council by the Commission )
 C0M(82 ) 771 final
 ---pagebreak---                         _ V    .         S ! t
                 EXPLANATORY MEMORANDUM
1 .   Article 1 ( 1 ) of the Proposal .
      Amendments to Article 61, of Regulation ( EEC ) N° 1 /f08/71
  (a)   Amendment to paragraph 5 «
        Article 61 ( 5 ) of Regulation ( EEC ) N° 1^08/71 provides
         that accidents at work or occupational diseases which
        have occurred previously shall be taken into account to
        assess the degree of incapacity where they have occurred
        under the legislation of another Member State .
        The proposed amendment would have the effect that where
        the legislation of a Member State provides the taking into
        account of accidents at work or occupational diseases which
        have occurred subsequently, the competent institution of
        that Member State should also take into account subsequent
        accidents at work or occupational diseases when they have
        occurred under the legislation of another Member State .
        Thus the position of the person concerned should not be
        worse compared to the position he would have been in if the
        accident had occurred within the framework      of one social
        insurance system .   This means that the institutions of
        Member States should not treat such cases differently in
        any respect from accidents occurring within their own
        borders
        Moreover , the proposed amendment clarifies that both previous
        and subsequent accidents will be taken into account for
        the purposes of :
        (i)     a&sesning the degree of incapacity
        ( ii )  establishing the claim
        ( iii ) determining the level of the benefit .
 ---pagebreak---                          - ι -
 (b)    Addition of paragraphs       6 and 7
        Paragraph 6 introduces overlapping rules in order to
        avoid double payment in cases of successive accidents
        at work .
        Paragraph 7 provides for the application of paragraphs
        and 6 by analogy to the case of successive occupational
        diseases or successive accidents at work and occupational
        diseases so as that the same rules would be applicable to
        successive injuries however sustained .
        It must be noted that the successive occupational diseases
        mentioned here are of different nature . The aggravation
        of the same occupational disease is governed by Article 60 ( 1 )
        ( b ) of the Regulation .
2.   Article 1 ( 2 ) ( a ) of the Proposal .
     Addition of point 14 at Annex           Section C ( Germany ) of
     Regulation 1 408/71 •
     The calculation of cash benefits under Articles 23 and 58 of
     Regulation ( EEC ) N° 1 /+08/ 71 has presented problems for the
     German institutions .
     Under Article 182 ( 4 ) of the Reichsversicherungsordnung ( Reich
     Insurance Code ) daily sickness benefits represent 80% of the
     usual remuneration (" Regellohn") which has been lost because
     of incapacity for work , and may not exceed the usual net
     remuneration that has been lost .        The net remuneration in this
     respect , is the gross remuneration after the legal deductions
     ( taxes and social security contributions ).
     Difficulties have arisen in connection with the determination
     of the normal net earnings in the case of frontier workers
     employed in Germany who are subject to the tax law of the
     State of residence under a convention of dual taxation .
     The proposal supplementing Annex VI is intended to enable Ger­
    man institutions to calculate the net earnings for the
 ---pagebreak---                         - 3 -
   determination of cash benefits under Articles 2 3 and 58
   of the said Regulation to frontier workers insured in that
   State and residing in another Member State , as if they were
   subject to German t?ax law .
3. Article 1 ( 2 ) ( b ) of the Proposal .
   Addition of point 4 A at Annex VI , Section J  United Kingdom
   of Regulation 1408/71 .
   The entry into force on 4th July 1982 of new legislation
   in the United Kingdom concerning maternity benefit involves
   changes in the conditions to be satisfied for the award of
   maternity benefit . The new law provides for the abolition
   of the contribution conditions and the introduction of condi­
   tions of presence in the United Kingdom as a substitute for
   the contribution conditions .
   The suggested addition to Annex VI point J , is designed to
   ensure that where the United Kingdom is the competent State
   for maternity benefits , periods of insurance , employment
   or residence completed in other Member States are taken into
   account in order to produce title to the benefit where a
   woman who is a worker would otherwise be unable to satisfy
   the presence conditions because of her having in the past been
   subject to the legislation of another Member State or where
   a woman who is not a worker was residing with- her husband in
   another Member State during periods of insurance or employment
   completed by him under the legislation of that State .
4. Article 2 ( 1 ) of the Proposal .
   Amendments of Article 72 of Regulation 574/ 72 .
   The proposed amendments are consequent upon the amendments
   suggested to Article 61 of Regulation 1408/ 71 and seek to'
   lay down the procedure for implementing these amendments .
 ---pagebreak---                            - V-
  5 . Article 2 ( 2 ) ( a ) of the Proposal .
        Amendment of paragraph ( 1 ) ( a ) ( ii ) at Annex 3 Section G
      ( Italy ) of Regulation 57^/ 72 .
        Following changes in the distribution of competences between
        the various authorities in Italy , the competence of the Ministry
        of Health has been extended to include certain other categories
        of . beneficiaries other th%n tljps.e who are mentioned in the Annex' at this
        moment .
        The suggested amendment seeks to reflect that change .
 6-    Article 2 ( 2 ) ( b) of the Proposal .
       Amendment of paragraph 3 at Annex 3 Section H ( Netherlands )
       of Regulation 57^/ 72 .
       Due to an oversight the competent institution for administering
       the special pension scheme of the mutual fund for the miners
       in the Limburg hard coal wines ( Algemeen             Mi jnwerkersfonds )
        had not been  included ■ in Annex 2 of Regulation 574 / 72 .
       The proposed amendment is designed to rectify this ommission .
7.     Article 2(3 ) of the Proposal .
       Amendments to Annex 3         of Regulation 57^/72 in respect of
       Section J ( United Kingdom ) .
       The United Kingdom institution for administering the social
       security scheme has reorganised its handling of family
      allowances matters .
      The amendment proposed seeks only to reflect that change .
8.    Article 2 ( k ) of the Proposal .
      Amendments to AnnexlO of Regulation 57h/72. in respect of
      Section . J ( United Kingdom^
      The reason for the amendment suggested here is the same as
      that described at paragraph 7 of this Memorandum .
 ---pagebreak---                               - 5 -
                          Proposal for a
                     COUNCIL REGULATION ( EEC )
amending Regulation ( EEC ) 1408 / 71 on the application of social
security schemes to employed persons , to self-employed persons
and to their families moving within the Community and Regulation
 ( EEC ) No 574 / 72 laying down the procedure for implementing
Regulation ( EEC ) 1408 / 71
  THE COUNCIL OF THE EUROPEAN COMMUNITIES ,
Having regard to the Treaty establishing the European
Economic Community , and in particular Articles 51 and 235 thereof .
Having regard to Council Regulation ( EEC ) N° 1^08/71 of
June 1971 on the aoplication of social security schemes to
employed persons , to self-employed persons and to their
families moving within the Community (1 ) , as last amended
by Regulation ( EEC ) N° 2793 /71 ( 2 )
Having regard to Council Regulation ( EEC ) N° 574/72 of 21
March 1 972 laying down the procedure for implementing Regu­
lation ( EEC ) N° 1408/71 on the application of social security
schemes to employed and self-employed persons and members of
their families moving within the Community ( 3 )> as last
amended by Regulation ( EEC ) N°                2474 / 82 (4)
Having regard , to the proposal of the Commission                  drawn up
alter consulting the Administrative Commission on Social
Security for Migrant Workers 5,
Having regard to the opinion of the European Parliament ( 6 );
Having regard to the opinion of the Economic and Social Committee(7 )
(1 )    - O.J.   N°   L 149 - 5.7.1971 , p. 2
( 2)    - O.J.   N°   L 275 - 29.9.1981 , p. 1
(3)     - O.J.   N°   L 74 - 27.3.1972 , p. 1
(/+)    - O.J.    N°  L 266 - 15.9.1982 , p. 1
( 5 ) - O.J. N° C
( 6 ) - O.J. N° C
( 7 ) - O.J. N° C
 ---pagebreak---                             - C-
Whereas the experience gained from implementing Regulations
 ( EKC ) N° 1408/71 and               N° 574/72 has revealed the need to
make some improvements to those Regulations ;
Whereas , consequently , when the legislation of a Member State
provides          that accidents        at work or occupational diseases
which have occurred subsequently shall be taken into account
in order to assess the degree of incaoacity , to establish a
right to benefit or to determine the amount of the benefit ,
they should also be taken in account when they have occurred
under the legislation of another Member State ; whereas double
compensation for successive accident ^ at work should be pre­
vented ;
Whereas it is necessary to amend Regulation ( EEC ) N° 574 / 72
accordingly ;
Whereas changes in the United Kingdom legislation concerning
entitlement to maternity benefit have made it necessary to make provision
in Annex VI to Regulation ( EEC ) N° 1408 / 71 so as to ensure that periods
of insurance , employment or residence completed in other Member States
are taken into account ;
'.Vhereas it is necessary to make provision in the siid Annex VI
enabling German Institutions to calculate the net earnings for
the determination of certain cash benefits to workers insured
in that State ;> nd residing in another Member State ;
iiVhereas it is necessary to amend A.mex 2 to Regulation ( iKC )
N° 574/ 72 to include the competent institution which administers
the special pension scheme for miners i .n the Netherlands ;
.Thereas it is necessary to amend Annexes 3 and 10 to Regulation
 ( EEC ) Mo 574 / 72 following changes in the administration of family allowances
in the United Kingdom ,
HAS ADOPTED THIS REGULATION :
 ---pagebreak---                             - ψ-
                           Article 1
Regulation ( EEC ) N° 1 /t08/71 is hereby amended as follows :
1 .    In Article 61 :
  (a)    Paragraph 5 is replaced by the followina :
        " 5 . Subject to the provisions of paragraph 6 , the
              competent institution of a Member State whose
              legislation expressly or by implication provides
               that accidents at work which have occurred pre­
              viously , or subsequently , shall be taken into
              consideration in order to assess the degree of
              incapacity , to establish a right to any benefit ,
              or to determine the amount of such benefit , shall
              also take into consideration accidents at work
              which have occurred previously , or subsequently ,
              under the legislation of another Member State as
              if they had occurred under the legislation which
              it administers ."
  (b)   The following paragraphs 6 and 7 are added :
        " 6 . The provisions of paragraph 5 on the taking into
              account of accidents at work that have occurred
              subsequently shall be applied only where no com­
              pensation was due in respect of the earlier acci­
              dent at work pursuant to the legislation of the
              Member State under which it occurred , and where
              no compensation is due in respect of the subse­
              quent accident at work by virtue of the legislation of the
              Member State under which it occurred , account being taken
              of the application of paragraph 5 .
          7 . The provisions of oaraqraphs 5 and 6 shall apply by analoay
              as regards successive occupational diseases or accidents at
              work followed or preceeded by occupational diseases ."
2.     In Annex VI :
  ( a ) In Section C, Germany, the following point H is added :
 ---pagebreak---  14 .     For the granting of cash benefits pursuant to Articles 182(4),
         200(2 ) and 561(1 ) of the Insurance Code ( RVO ) to insured persons
         residing in another Member State , German insurance institutions
         shall calculate the net earnings to be taken into account for
         the determination of the benefit rate Dayable as though thpy
         resided in the Federal Republic of Germany ."
In Section J , United Kinqdom , the folLowinq Doint 4a is inserted after
point 4 .
"^ a(l ) For the purposes of entitlement to maternity grant ,
        periods of insurance or employment completed under
         the legislation of another Member State shall be
        regarded as periods of presence in Great Britain or ,
        as the case may be , Northern Ireland and , in such
         case , the provisions of Article 18 ( 1 ) of the Regula­
         tion shall apnly as if the references therein to
        periods of residence were references to periods of
        presence .
        iftiere a woman subject to United Kingdom legislation
        in accordance with the provisions of Title II of the
        Regulation does not satisfy the condition imposed by
        that legislation concerning presence within Great
        Britain or , as the case may be , Northern Ireland on
         the date of claim or the date of confinement , she
        shall be regarded as satisfying such condition if she
        was on the date in question in another Member State .
     ( 2 ) If a woman , whose husband is or has lastly been a
        worker subject to United Kingdom legislation in accor­
        dance with the provisions of Title II of the Regula­
         tion , does not satisfy the conditions imposed by
        United Kingdom legislation in relation to maternity
         grant concerning :
         ( a ) presence within Great Britain or , as the case may
               be^Northern Ireland on the date of claim or the da­
               te  of confinement , she shall be regarded for the
 ---pagebreak---                           - 3-
               purpose of satisfying such conditions as being so pre­
               sent if she was with her husband on the date in question
               in another Member State ; or , in the event of the death
               of her husband occurring within six months before the
               date in question , if she was residing with him in
               another Niember ;; tate at the time of his death ;
         ( b ) a period of presence within Great Britain or , as the
               case may be , Northern Ireland , of more than 182 days in 1
               the 52 weeks immediately preceding the expected week,
               of confinement or , as the case may be , the date of
               confinement , periods of insurance or employment comple­
               ted by her husband under the legislation of another
               Member State shall , if she was residing with him through'
               out those periods , be regarded as periods of presence in
               Great Britain , or as the case may be , Northern Ireland ."
                     Article    2
Regulation ( EEC ) 57A/71 is hereby amended as follows :
1.    Article 72 is replaced by the following :
     " Implementation of Article 61 ( 5 ) of the Regulation
                     Article 72
       Assessment of the degree of incapacity in the case of an
       accident at work sustained or an occupational disease diagno­
       sed previously or subsequently .
   1 . In order to assess the degreeoof incapacity , to establish a
       right to any benefit , or to determine the amount of such
       benefit in the cases referred to in Article 61 ( 5 ) of the
       Regulation , a claimant shall supply the competent institution
       of the Member State to whose legislation he wits subject at
       the time when the accident at work was sustained or the occu­
       pational disease was fir;t diagnosed , with all information on
       previous or subsequent accidents at work sustained or occupa­
       tional diseases contracted by him when he was subject to the
       legislation of any other Member State , whatever the degree of
       incapacity caused by those previous or subsequent cases .
 ---pagebreak---                                  - jo-
   2.       In accordance with the legislation which it administers in
            respect of the acquisition of the right to benefit , and the
            determination of the amount of benefit , the competent insti­
            tution shall take into account the degree of incapacity
            caused by those previous or subsequent cases .
   3.       The competent institution may apply to any other institution
            which was previously or subsequently competent to obtain any
            information which it considers necessary .
            When a previous or a subsequent incapacity for work was cau­
            sed by an accident sustained while the person concerned was
            subject to the legislation of a hember State which makes no
            distinction as to the origin of the incapacity for work , the
            competent institution in respect of the previous or subsequent
            incapacity for work or the body designated by the competent
            authority of the Member State concerned shall , at the request
            of the competent institution of another Member State , supply
            information on the degree of the previous or subsequent in­
            capacity for work and as far as possible , any information
            which would make it possible to determine whether the inca­
            pacity was the result of an accident at work within the
            meaning of the legislation administered by the institution
            of the second Member State . Where such is the case , the
            provisions of paragraph 2 shall iAirply by analogy ."
2.      In Annex 2 :
   Ca )     In Section G , Italy, paragraph 1 : the text of ( a ) ( ii ), -j s
            replaced by the following :
        " ii ) for certain categories
                of civil servants , of
                persons employed in the
                private sector and per­
                sons treated as such , for
                pensioners and members of
                their families              :   Ministero della Samta ,
                                              ( Ministry of Health ), Rome "
 (b)      In Section I , Netherlands , paragraph 3 is replaced by the following :
        " 3 . Old-age , death ( pensions ):
              ( a ) in general : Sociale Verzekeringsbank ( Social
                                    Insurance Bank ), Amsterdam
              (b5   for miners   :  Algemeen Mijnwerkersfonds ( The Miners'
                                    General Fund ), Heerlen ."
 ---pagebreak---                             - yy-
3.  Section J , United Kingdom , of Annex 3 is amended as follows :
     a)    Paragraph 2 is replaced by the following :
    "2 .    Cash benefits ( except family allowances ):
           Great Britain :            Department of Health and Social
                                      Security
                                      Overseas Branch
                                      Newcastle ut>on Tyne
                                      NE98 1 YX
           Northern Ireland :         Department of Health and Social
                                      Services
                                      Overseas Branch
                                      Belfast
                                      rm 3HJI
           Gibraltar :                Department of Labour and Social
                                      Security
                                      Gibraltar "
     b)    The following paragraph 3 is added :
   " 3 - Family allowances :
     i-'or the purpose of armlying .Articles 73 and 7k of the
     Regulation :
           Great Britain :            Department of Health and Social
                                      Security
                                      Child Benefit Centre ( Washington )
                                      Newcastle upon Tyne
                                      NEc 8 1 AA
           Northern Ireland :         Department of Health and Social
                                      Services
                                     Overueas Branch
                                     Bel fast
                                     BT4 3HH
           Gibraltar :                Department of Labour and Social
                                     Security
                                     Gibraltar "
 ---pagebreak---                             - -/£• '
4.      Section J , United Kingdom , of Annex 10 is replaced by the following :
     " J. UNITED KINGDOM
   I.For the purposes of applying Article 11 ( 1 ), Article 11a ,
       Article 12a , Article 13 ( 2 ) and ( 3)j Article 1 ^ ( 1 ), ( 2 )
       and ( 3 ) , Article 38 ( 1 ), Article 70 ( 1 ), Article 80 ( 2 ),
       Article 81 , Article 82 ( 2 ), Article yl ( 2 ), Article 102 ( 2 )
       and Article 110 of the implementing Regulation .
              Great Britain :            Department of Health and Social
                                         Security
                                         Overseas Branch
                                         Newcastle upon Tyne
                                         NE98 1 YX
              Northern Ireland :         Department of Health and Social
                                         Services
                                         Overseas Branch
                                         Belfast
                                         BT4 3HH
   2 . For the purposes of applying Article 85 ( 2 ) and Article 86 ( 2 )
       of the implementing Regulation
              Great Britain :            department of Health and Social
                                         Security
                                         Child Benefit Centre ( Washington )
                                         Newcastle uwon Tyne
                                         NE38 1 AA
              Northern Ireland :         Department of Health and Social
                                         Services
                                         Overseas Branch
                                         Belfast
                                         BTk 3HH "
                                Article    3
       This Regulation shall enter into force on the day of its
       publication in the Official Journal of the European Commu­
       nities .
 ---pagebreak---                    ~ Vá-
Article 1 ( 2 ) ( b ) shall apply with effect from 1 April
1982 .
This Regulation qhall be binding in its entirety and direct­
ly applicable in all Member States .
Done at Brussels ,
                      For the Council
                          The President