CELEX: 51985PC0396
Language: en
Date: 1985-07-18
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

N o C 240/6                              Official Journal of the European Communities                                   21. 9. 85
                                                              II
                                                      (Preparatory Acts)
                                                COMMISSION
               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
                                                        (COM(85) 396 final)
                                 (Submitted by the Commission to the Council on 8 August 1985)
                                                           (85/C 240/08)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                             there is an absence of discretion in the manner in which
                                                                     such benefits as are provided thereunder are awarded,
 Having regard to the Treaty establishing the European               and in that it confers a legally defined position upon
 Economic Community, and in particular Articles 7, 51                beneficiaries;
 and 235 thereof;
                                                                     Whereas Regulation (EEC) N o 1408/71 excludes from
                                                                     its scope, by virtue of Article 4 (4) thereof, social
 Having regard to the proposal of the Commission drawn
                                                                     assistance schemes;
 up after consulting the Administrative Commission on
 Social Security for Migrant Workers;
                                                                     Whereas the conditions referred to and their methods of
                                                                     application are such that a system of coordination which
 Having regard       to  the   opinion    of   the   European        differs from that currently provided for in Regulation
 Parliament;                                                         (EEC) No 1408/71, and which takes account of the
                                                                     special characteristics of the benefits concerned, should
Having regard to the opinion of the Economic and                     be included in that Regulation in order to protect the
 Social Committee;                                                   interests of migrant workers in accordance with the
                                                                     provisions of Article 51 of the Treaty;
Whereas it is necessary to amend Council Regulation
 (EEC) N o 1408/71 (*), as last amended by Regulation                Whereas such benefits should be granted, in respect of
 (EEC) No 1660/85 ( 2 );                                             persons falling within the scope of Regulation (EEC) No
                                                                     1408/71, solely in accordance with the legislation of the
                                                                     country of residence of the person concerned, or of the
Whereas it is necessary to extend the definition of                  members of his or her family, with such aggregation of
'member of the famil/ in Regulation (EEC) No 1408/71                 periods of residence completed in any other Member
to conform with the case law of the Court of Justice                 State as is necessary and without discrimination on
concerning the interpretation of that expression;                    grounds of nationality;
Whereas it is also necessary to take account of the case             Whereas it is necessary nevertheless to ensure that the
law of the Court of Justice stating that certain benefits            existing system of coordination in Regulation (EEC) N o
provided under national laws may fall simultaneously                 1408/71 continues to apply to benefits which either do
within the categories of both social security and social             not fall within the special category of benefits referred to
assistance because of the class of persons to whom such              or are not expressly included in an Annex to that Regu-
laws apply, their objectives and their manner of                     lation; whereas a new Annex is needed for this purpose;
application;
                                                                     HAS ADOPTED THIS REGULATION:
Whereas the Court has stated that, in some of its
features, legislation under which such benefits are granted
is akin to social assistance in that need is an essential                                       Article 1
criterion in its implementation and the conditions of                Regulation (EEC) N o 1408/71 is hereby amended as
entitlement are not based upon the aggregation of                    follows:
periods of employment or contributions, whilst in other
features it is close to social security to the extent that
                                                                     1. Article 1 is amended as follows:
O OJ No L 149, 5. 7. 1971, p. 2.                                         (a) Point (f) becomes point (f) (i), and the following
(*) OJ No L 160, 20. 6. 1985, p. 1.                                          is inserted as point (f) (ii):
 ---pagebreak--- 21.9.85                                   Official Journal of the European Communities                                No C 240/7
         '(ii) where, however, the benefits concerned are                were periods completed in the territory of the first
               benefits for disabled persons granted under               Member State.
               the legislation of a Member State to all
               nationals of that State who fulfil the pre-               3.    Where the legislation of a Member State makes
               scribed conditions, the term "member of the               entitlement to a benefit, which comes within the scope
               family" means the spouse of an employed or                of paragraph 1 but which is granted in the form of a
               self-employed person and the children of                  supplement, subject to receipt of a benefit coming
               such person who are either minors or who                 within the scope of Article 4 (1) (a) to (h), and no
               are dependent upon such person.'                          such benefit is due under that legislation, any
                                                                         corresponding benefit granted under the legislation of
    (b) In point (j), the following words are added to the               any other Member State shall be treated as a benefit
         first subparagraph:                                             granted under the legislation of the first Member
         'or those special non-contributory            benefits          State for the purposes of entitlement to the
                                                                         supplement.
         covered by Article 4 (2a).'
                                                                         4.    Where the legislation of a Member State makes
2. In Article 4, the following paragraph 2a is inserted:
                                                                         entitlement to a benefit, as referred to in paragraph 1,
    '2a      This Regulation shall also apply to special non-            for disability or invalidity, subject to the condition
    contributory benefits which are provided under                      that the disability or invalidity should be diagnosed
    legislation other than that covered by paragraph 1,                 for the first time in the territory of that Member
   where such benefits:                                                  State, this condition shall be deemed to be fulfilled
                                                                        where such diagnosis is made for the first time in the
    (a) Function as supplements or as substitutes upon the              territory of another Member State.'
         materialization of any of the risks covered by the
         branches of social security referred to in
                                                                     5. The following Annex Ha is inserted:
         paragraph 1 (a) to (h); or
    (b) are intended solely for the protection of the                    'ANNEX Ha
         disabled; or                                                   (Article 10a of the Regulation)
    (c) are intended to guarantee a minimum social
         income.'                                                       A. BELGIUM
3. Article 5 is replaced by the following:                              (a) Allowances for disabled persons (Law of 27 June
                                                                              1969);
    'Article 5
                                                                        (b) Guaranteed income for elderly persons (Law of
    Declarations of Member States on the scope of this Regu-                  1 April 1969);
    lation
                                                                        '(c) Guaranteed family benefits (Law of 20 July 1971).
   The Member States shall specify the legislation and
   schemes referred to in Article 4 (1) and (2), the                    B.   DENMARK
   special non-contributory cash benefits as referred to
                                                                        None.
   in Article 4 (2a), the minimum benefits referred to in
   Article 50 and the benefits referred to in Articles 77               C. GERMANY
   and 78 in declarations to be notified and published in
   accordance with Article 97.'                                         None.
4. The following Article 10a is inserted after Article 10:              D. FRANCE
    'Article 10a                                                        (a) Supplementary allowance (National           Solidarity
                                                                             Fund) (Law of 30 June 1956);
    1.     Notwithstanding the provisions of Article 10 and
   the provisions of Title III, persons to whom this                    (b) Special allowance (Law of 10 July 1952);
   Regulation applies shall be granted special non-contri-
                                                                        (c) Allowance for handicapped adults (Law of 30
   butory cash benefits as referred to in Article 4 (2a)
                                                                             June 1975).
   exclusively in accordance with the legislation of the
   Member State in whose territory they reside, provided                E. GREECE
   that such benefits are listed in Annex Ha.
                                                                        (a) Special benefits for elderly persons (Order of
   Such benefits shall be granted by and at the expense
                                                                             31 July 1981).
   of the institution of the place of residence.
   2.     The institution of a Member State whose                       F.   IRELAND
   legislation makes entitlement to the benefits referred               (a) Unemployment assistance;
   to in paragraph 1 subject to the completion of periods
   of employment, self-employment or residence shall                    (b) Old age non-contributory pension;
   take account, to the extent necessary, of periods of
                                                                        (c) Widow's non-contributory pension;
   employment, self-employment or residence completed
   in the territory of any other Member State as if they                (d) Orphan's non-contributory pension;
 ---pagebreak---  No C 240/8                              Official Journal of the European Communities                                   21.9. 85
    (e) Blind person's pension;                                      2.    This Regulation shall not give rise to any rights in
                                                                     respect of any period prior to the date of its entry into
    (f) Disabled person's maintenance allowance;                     force.
    (g) Mobility allowance;
                                                                     3.    Periods of residence, employment and self-
    (h) Infectious diseases maintenance allowance;                  employment completed in the territory of a Member
                                                                     State prior to the date of entry into force of this Regu-
    (i) Allowance for parents of severely handicapped
                                                                     lation shall be taken into account in determining
        children;
                                                                    entitlement for the purposes of, and in accordance with,
    (j) Blind welfare allowance;                                    the provisions of this Regulation
    (k) Maintenance allowance for persons undergoing                4.     Subject to the provisions of paragraph 2, rights may
        rehabilitation.                                             arise by virtue of this Regulation notwithstanding that
                                                                    they relate to an event which materialized prior to the
    G. ITALY                                                        date of the entry into force of this Regulation.
    (a) Social pension for persons without means (Law
        N o 153 of 30 April 1969);                                   5.    Any benefit, entitlement to which has been refused
                                                                    or suspended on grounds of the nationality of the
    (b) Benefits for the civilian disabled or invalids (Law         claimant or beneficiary shall, upon the application of the
        N o 118 of 30 March 1974);                                  same, be granted or reinstituted from the date of entry
                                                                    into force of this Regulation, except in those cases where
    (c) Pension for the deaf and dumb (Law N o 381 of
                                                                    the earlier claim to that benefit was settled by the award
        26 May 1970);
                                                                    of a lump-sum payment.
    (d) Pension for the blind (Law N o 382 of 27 May
        1970).                                                      6.     Rights of persons who have been granted pensions
                                                                    prior to the date of entry into force of this Regulation
    H. LUXEMBOURG                                                   may, upon their application, be reviewed to take account
                                                                    of the provisions of this Regulation.
    (a) National Solidarity Fund benefits (Law of 30 July
        1960);                                                      7.     If applications as referred to in paragraphs 5 and 6
    (b) Compensatory cost of living allowance (Law of               are submitted within two years from the date of entry
        13 June 1975);                                              into force of this Regulation, any rights to which they
                                                                    give rise under this Regulation shall take effect from
    (c) Special severe disablement allowance (Law of                the date of entry into force of this Regulation,
        16 April 1979).                                             notwithstanding any legislative provisions in any
                                                                    Member State concerning the forfeiture or limitation of
   I.   NETHERLANDS                                                 rights which might otherwise apply to the person
   None.                                                            concerned.
   J.   UNITED KINGDOM                                              8.     If an application as referred to in paragraphs 5 and
                                                                    6 is submitted after the expiry of a period of two years
    (a) Mobility allowance (Social Security Act 1975 of             following the date of entry into force of this Regulation,
        20 March 1975, Section 37A);                                rights which have not lapsed or become time-barred shall
   (b) Invalid care allowance (Social Security Act 1975             take effect from the date upon which the application is
        of 20 March 1975, Section 37).'                             submitted, without prejudice to those provisions of the
                                                                    legislation of each Member State which are more
                                                                    favourable.
                          Article 2
                                                                                               Article 3
1.     Application of the provisions of Article 1 of this
Regulation shall not by itself have for effect the                  This Regulation shall enter into force on the first day of
withdrawal of benefits granted prior to the entry into              the month following its publication in the Official Journal
force of this Regulation by the competent institutions of           of the European Communities.
the Member States in pursuance of the provisions of
Title III of Regulation (EEC) N o 1408/71, to which the             This Regulation shall be binding in its entirety and
provisions of Article 10 of that Regulation apply.                  directly applicable in all Member States.