CELEX: 51980PC0580
Language: en
Date: 1980-10-15
Title: Proposal for a COUNCIL REGULATION (EEC) amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community and Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71 (presented by the Commission to the Council)

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COM (80) 580
Vol. 1980/0185
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 ---pagebreak---  COMMISSION OF THE EUROPEAN COMMUNITIES
                                                COM(80)580 final
                                                Brussels , 15 October 1980
                          Proposal for a
                       COUNCIL REGULATION ( EEC )
      amending Regulation ( EEC ) No 1408 / 71 on the application of ,
      social security schemes to employed persons and their families
      moving within the Community and Regulation ( EEC ) No 574 / 72
      fixing the procedure for implementing Regulation ( EEC ) No
                             1408 / 71
                                                                           /
COM(80)580
              (pres nted by the Com ^ ^
            final
 ---pagebreak---                                 - 1 -
                       EXPLANATORY MEMORANDUM
1 . Article 1 - Amendments to Reflation ( SE '"Q WO 1408/71
    1 . Amendment to Article 22(2)
        Under the provisions of Article 22(l)(c), a worker insured in a
        Member State may be authorized to go to another Member State for
        treatment by receiving the benefits in kind provided for by the
        legislation of the latter State as though he is insured there .
        Under the terms of Article 22(2), second subparagraph , this autho­
        rization , given by the competent institution , cannot be refused if
        the relevant treatment cannot be provided to the person concerned
        in the territory of the Member State where he resides ,.
        Experience has shown that the application of this provision , which
        is based on the freedom of movement of workers within the meaning
        of Article 48 of the Treaty, could give rise to abuse . Thus , the
        competent institution of a Member State may have to grant such
        authorization to a worker   who has never left his country of origin
        and who wishes to go to another Member State with the sole aim of
        receiving medical treatment there that is not provided for -by the
        legislation of the Member State in which he is insured .
               f
        On the other hand , the financial difficulties faced by the sickness
        insurance schemes of the Member States justify an extension of the
        discretionary power of the institution on whose behalf the-benefits
        are provided in that it should be free to grant or refuse authorization .
        Consequently , the Commission proposes to replace the second subparagraph
        of Article 22(2) by a provision stipulating that the said authorization
        cannot be refused where the treatment in question is provided for by the
        legislation of the Member State on whose territory the beneficiary re­
        sides but cannot be provided to him in time .
 ---pagebreak---                                       - 2-
2 . Amendment to Artjole 9.V 4 "
     Under Article 93 of Regulation 1408 / 71 , provision exists for1 the
     recognition of subrogation of , or direct action by , the institution
     responsible for paying benefits to an insured person .
     Such subrogation or direct action takes place where the institution
     responsible for paying those benefits is , by virtue of the legislation
    which it admini sters , either subrogated to the rights which the
    beneficiary has against a third party liable , or indeed invested with
    direct rights against that third party .
    Difficulties arise in operating this provision where waiver agreements
   on reimbursement have been concluded between Member States under the
   provisions of either or both Articles 36 ( 3 ) or 63 ( 3 ) of Regulation
    1408 / 71 . In such a situation the' institution of the Member State which
   has actually provided the benefits in respect of the injury caused by
   the third party within its territory , is without remedy against either :
         » .
   ( a ) the competent institution on whose behalf the benefits were provided ,
             because of the effect of the waiver agreement , or
    ( b ) the third party in its territory, because of the absence of a
             contractual link with the insured person .
    In order to rectify this situation it is being proposed that Article
    93 be amended by the addition of a third       paragraph the effect of which
    would be to recognise in the institution of the place of stay or residence
    of the Member State where benefits are being provided in respect of an
    injury sustained within its territory, either the right to       subrogation ,
    or        direct action against the third party liable , in accordance with the
    legislation which the institution administers .
 ---pagebreak--- So as to achieve this result paragraph ( b ) of the draft creates
the fiction of deeming the beneficiary to be insured with the
institution of the place of stay or of residence and further that
such institution be the debtor institution .
Lastly paragraph ( c > of the draft preserves the application of the
general provisions embodied in the existing paragraph ( 1 ) of
Article 93 with regard to those benefits , reimbursement of which
has not been waived by agreements concluded under Article 36 ( 3 )
or Article 63 ( 3 ).                                          -
 ---pagebreak---                                  - 4 -
2 . Article 2 of the Proposal concerning an amendment to Annex IV
     to Regulation 1408 / 71 .
     On the occasion of the amendment of Article 40 of Regulation
     1408 / 71 by Council Regulation 2595 / 77 ( 1 ) the existing paragraph
     3 of that Article was renumbered 4 so as to allow for the
     introduction of an entirely new paragraph 3 . Due to an oversight ,
     the consequential amendment to the heading of Annex IV to
     that Regulation was not then also effected . The opportunity is
     now taken to rectify that omission .
( 1 ) O.J. No . L 302 of 26.11.77 at p. 1 , see Article 7 ( 4 ).
 ---pagebreak---                                 - 5-
3 . Article 3 ( 1 ) of the Proposal concerning an amendment to Annex V ,
 ' A , Belgium of Regulation 1408 / 71 .
    The Arrete Ro>al No . 29 amending the coordinated laws concerning
    famit-y allowances for workers has effected changes in Belgian
    legislation concerning family allowances .
                     'N         ..  '        '               '       ■
    In    cases where , previously , the person concerned had to provide
    evidence of an insurance history as an employed person , he now has to prove
    that during the 365 days before the risk insured against materialised
     ( sickness , invalidity , retirement , death ), he had fulfilled during at
     least 150 days ,t he qualifying conditions for fami ly allowances in
     accordance wi th the family allowances' scheme fcr workers .
     The condition of employment before the risk insured against materialised
      has thus been replaced by that of " satisfying the qualifying conditions
      for family allowances ".                                 :
                 . '                       . •                   '             *
      The new provision naturally applies only to Belgian schemes .
       It is intended to allow for the taking into account
      of the periods of insurance and/ or employment provided for under
      Article 72 and 79 ( 1 ) ( a ) of Regulation 1408/ 71 as well as periods
      during which a worker has resided in a Member State where by virtue
      of the legislation of that State entitlement to family benefit is ;
      subject only to a residence condition, for the purpose of applying the
      new provisions of Belgian legislation to a worker who has previously '
      been insured in that State .
 ---pagebreak---                                      - 6 -
4 . Article 3 ( 2 ) of the Proposal concerning amendments to Annex V.B.
    Denmark , of Regulation 1408 / 71 .
    ( a ) Article 3 ( 2 ) ( a ) of the Draft Proposal .
            The concept of "worker " in Denmark has hitherto been defined in
            accordance with the law on accident insurance . In the light of
            Article 1 ( a ) ( ii ) of Regulation' 1408 / 71 the Danish definition
            is in the following terms : " Any person who , from the fact of
            pursuing an activity as an employed person , is subject to
            legislation on accidents at work and occupational di seases, shal I
            be considered a worker within the meaning of Article 1 ( s ) ( ii )
            of the Regulation".
            During the negotiations on Denmark 's accession it was not
            considered possible for the purpose of effecting the necessary
            technical amendments to Regulation 1408 / 71 , simply to adhere
            to the saine definition as in the Danish law on supplementary
          . pensions ( the ATP ), because the ATP scheme at that time only
            covered about 80 % of workers .      Therefore the definition adopted
            was that laid down in the law on accident insurance which covered
            virtually       all workers .
             When the ATP Law was amended on 1st September 1977 , the scope of the
             definition was widened by lowering the age limit from 18 to 16 .
             Moreover , the former exclusion from membership affecting apprentices
         ' and persons treated as such was lifted ; the ATP scheme now also covers
             persons working under a contract of apprenticeship in accordance with
             the law on apprenticeships . Again , the minimum employment condition
             for membership in the scheme was lowered from 15 to 10 hours a week .
 ---pagebreak--- Adoption of the definition . laid down in the ATP taw has led to a
clearer demarcation of the concept of "worker " in contrast with
that contained in the law against industrial injuries which also
covers unpaid employment / however brief its duration . ATP membership
extends to wage-earners , i.e. persons engaged in gainful employment
in the service-of an employer .. The scheme covers nearly all manual
end non-manual workers , civil servants and persons treated as such ,
which in all , account for 90-95 % of employed persons .
Unlike the law on insurance against industrial injuries , the ATP
Law requires all workers to be individually registered so as to ensure
the accurate recording of the payment of pension contributions for
each worker . For this purpose the CPR number C det centrale personregister
                                                   ■ ; »          •
civic registration number ), of each member is used . The law on insurance
against industrial injuries merely requires th^t the employer take out a
collective insurance in respect of his employees without having to name
them individually , whereas the ATP register shows clearly whether and
for how long a person is or has been employed .
 In the light of these developments in Danish legislation , it is proposed
 that the entry at paragraph 1 of Annex V B. Denmark of Regulation 1408 / 71
 be   amended so that the concept of " worker " in the case of persons v-
 who      were working in Denmark before 1st September , 1977 should be    •
 defined in accordance with .the law on insurance against industrial
 injuries and for those who become employed on or after 1st September 1977 ,
 in accordance with the law on supplementary pensions for employed persons
 ( ATP ).   The draft seeks to reflect this change .
 ---pagebreak---                                       - 8 -
  ( b ) Article 3 ( 2 ) ( b ) of the draft Proposal .
  ( i ) For the purpose of health service coverage in Denmark , insured
        persons are divided into two classes according to wage brackets .
        The main difference between the two types of coverage is that
        persons in class 1 are entitled to free medical care solely
        from a local doctor of their choice while those in class 2 receive
        a partial refund of their medical expenses       and are free to
        choose their own doctor .
        The classification of insured persons in public health service
        " classes " according to wage brackets ceased on 1st April 1976
        with the amendment of the Law on the Public Health Service .      It   '
        was replaced by'a free choice for individuals between classes 1 ~
        and 2 . The choice is binding for one year at a time .
        The amendment gives effect to this change .
( ii ) As from 1st April , 1976 the title of the law on widows 'pensions'
        and allowances has been changed to " Law on widows'pension "
        ( lov om pension til enker     M. fl .).  The reason for the amendment
        is that the provisions regarding allowances to widows which were
        formerly laid down in this law were repealed while at the same
        time the new legislation on social assistance entered into force .
        The amendments reflect      this change .
  ( c ) Article 3 ( 2 ) ( c ) of the Draft Proposal .
        Difficulties have arisen in connection with the assessment of
        Danish widows' pensions and Danish old-age invalidity pensions in
        circumstances where there has      been insurance both in Denmark and
        in another Member State .
 ---pagebreak---       The problems which arise from the particular features of Danish legislation
      are as follows :
      < i ) in respect of widow 's pension , where the widow 's period - of residence
             in Denmark has been longer than that of her deceased husband ,
            Danish legislation provides that the widow 's own period of residence
          , should form the basis for calculating the pension , whereas , for
            example , under German legislation such pension must be calculated
            on the basis of the deceased husband 's own period of insurance ;
    ( ii ) in respect of old-age or invalidity pensions , where the deceased
            spouse 's period of residence in Denmark has been longer than that
            of the claimait , Danish legislation provides that the deceased
            spouse' speriod of residence   should serve as the basis for calculating   ;
            the pension, whereas , for example      again , German legislation
            provides that the basis should be the clainrant 's own period of
            insurance .                            '
   Unless 3 formula is adopted which allows for aggregation in respect of            .
   such periods , difficulties will arise because when applying the assessment
   provisions contained in Article 46 of Regulation 1408/ 7,1 , any aggregation
   would depend on wholly arbitrary criteria , e /g . whether the deceased \
   spouse 's period of residence or the claimants'own period of residence
   should be taken into account as the basis for calculating a Danish pension .^
   So as to avoid Conflicts of this nature a provision has been drafted , the
  practical effect of which would be to recognise that national pensions should
  be calculated in accordance with national law , as envisaged in Article 46 ( 1 )
  of Regulation 1408 / 71 . This wouLd mean in the case of Denmark , that an
  amount would be ca Iculated on the basis of periods completed , perhaps , by two
• different persons , whereas in respect of the theoretical and pro-rata assessments
  referred to in Article 46 ( 2 ), both Denmark and , for instance the Federal
  Republic of Germany , would be required to aggregate . the periods of residence
 and insurance completed respectively by the deceased husband where the claim =-
 was for a widow 's pension and by the insured woman herself where the olaim
 was for old-age or invalidity pension . Only the higher of the two assessments '
 calcut at - J under Articles 46 ( 1 ) and 46 ( 2 ) respectively would oe paid .
 ---pagebreak---                                 – 10 «"
of R c^ul ation 1403/71                          -
Ps.ra,°"raoh 5 s intended, "to regulate cases where German sickness insurance
institutions are required to repay among themselves , in whole or in part ,
exceptional charges * In this respect , the Federal Association oi Regional
Sickness Funds and the Federal Fund for Miners' Insurance have together
decided to modify the methods by which such repayment is to "be effected .
It results from such modification that the phrase " including retired
oersons" appearing at the end of the - paragraph should, be replaced by
the f ollcx/ing , " excluding retired persons" ,
The amendment proposed does not affect the rights of insured persons ;
it only concerns national measures for repayment between sickness in­
surance institutions .
 ---pagebreak---                                                               I
                                 - 11 -
6. Article 3 ( 3 ) ( c ) of the Proposal concerning the addition paragraph n
   at Annex V. C , Germany of Regulation 1408 / 71 .
   The entry into force on 1st July , 1977 of the Law curbing the cost of health
   insurance ( Krankenversi cherungs - Kbstendampfungsgesetz ) , involved changes to
   the sickness insurance scheme for pensioners . Article 165 ( 1 ) ( 3 ) Ca ) of the
   Rei chsversi cherungsordnung provides that only where a person was compulsorily
   insured against sickness with a statutory scheme for at least half the time
   between first taking up gainful employment and applying for a pension , will
   he be automatically covered by the sickness insurance scheme for pensioners
   without having to pay contributions .
   The suggested amendment would enable the competent German institution to take
   account , for the purpose of satisfying the said German Law , of periods of
   insurance or residence accomplished under the legislation of any other Member
   State and during which the person concerned had an entitlement to sickness
   benefits in kind in the event of illness .
7. Article 3 ( 4 ) of the Proposal concerning an amendments to Annex V. D France
   of Regulation 1408 / 71 .                  .
   The life annuity ( secours viager ), is the reversionary pension of the allowance
   for elderly employed persons.' Its award must therefore conform to the same
   conditions    as those which are applied at paragraph 1 of Annex V D France in
   respect of the award of the allowance to elderly employed persons . Rentention
   of the requirement of residence in France at the time of submission of the
   claim for the life annuity would not , however , be justified in the case of
   the widow of a recipient of this allowance who was residing in a Member State
   other than France at the time of the recipient 's death .
                                                                                        \
                                                                                         \
                                                                                      S
                                                                                     -I'
 ---pagebreak---                                     - 12
8 . Article 3 ( 5 ) ( a ) and ( b ) of the Proposal concerning amendments to
    paragraphs 5 and 8 of Annex V. I , United Kingdom of Regulation 1408 / 71 .
    ( 1 ) Paragraph 5 . As a result of amendments to the legislations of Great Britain
          and Northern Ireland concerning conditions for entitlement to attendance
          allowance , the stringent conditions which needed to be satisfied by persons
          who were not of British nationality or whose place of birth was not in
          the United Kingdom , have been removed . With effect from 14th January , 1980
          the residence and presence conditions to be satisfied . for this benefit are
          the same for all , irrespective of nationality and / or place of birth .
          Paragraph 5 ( a ) of Annex V. I of Regulation 1408 / 71 is therefore now otiose
    ( 2 ) Paragraph 8 . provides that wherever required by United Kingdom legislation ,
          for the purposes of determining entitlement to benefits , nationals of any
          Member Stat'e born in a third State are to be considered nationals of
          the United Kingdom born in a third State . Before 14th January , 1980 ,
          attendance allowance was the only remaining benefit for the award of
          which the conditions differed according to a person 's nationality and/ or
          place of birth . In view of this/ the provisions of paragraph 8 are now
          also superfluous .
9 . Article 3 ( 5 ) ( c ) of the Proposal concerning an amendment to the renumbered
    paragraph 11 , Annex V. I , United" Kingdom of Regulation 1408 / 71 .
    As from 2nd July , 1973 , the Non-Contributory Social Insurance Benefit and
    Unemployment Insurance Ordinance ( Gibraltar ), referred to in the renumbered
    paragraph 11 , was amended to refer to "ordinary residence " in Gibraltar
    as opposed to "domicile ".
    The amendment proposed seeks only to reflect that change .
 ---pagebreak---                                         - 13 -                                                               : t
                                                                                                      i.       •
  10. Article A ( 1 ) ( a ) and ( 4) ( a ) of the Proposal concerning amendments to                   |j (; '
     . * Articles 17 ( 2 ) and 60 ( 2 ) respectively of Regulation 574 / 72 .         .
          Articles 17 ( 2 ) and 60 ( 2 ) of Regulation 574 / 72 are in virtually identical
          terms and deal respectively with benefits in kind for sickness / maternity and
          accidents at work / occupational diseases . .
         When a worker is employed and insured in one Member State and resides in                 .' •>
          another where he seeks to obtain any of the said benefits in kind ," he must           .■[
          submit a  certified statement to the institution of his place of residence
         certifying that he ( and , in the case of benefits in kind for sickness / maternity ^
         the members of his family ), are entitled to such benefits . This certified           -        !
                                                                                                        I ■'
                                                                                                        * ,
       . statement is furnished by the competent institution of the State where the
         worker is employed and insured .            \
         The general rule established by the said Articles 17 ( 2 ) and 60 ( 2 ) is that
   •     the certified statement shall remain valid until the institution of the place .
         of residence is notified of its cancellation . In the case of France , however ,                •
       . the paragraphs at present provide that such a certified, statement issued
         by a French institution shall remain valid for a period of three montKs only ,
         following the date o'f'its issue and that it must be renewed every three -
         months . France has indicated her willingness to agree to the certificates having
         a validity of six months with a consequential renewal period of six months .
•        The amendments proposed seek to reflect this change.'                            , \
11 . Article 4 ( 1 ) ( b ) and ( 4 ) ( b ) of the Proposal concerning amendments to          ,
         Articles 17 ( 7 ) and 60 *( 6 ) respectively of Regulation 574 / 72 .   ' :
         Articles 19 ( 5 ) and 29 ( 2 ) of the former Regulation No . 3 provided that except
         in cases of extreme urgency , the award of prostheses , major appliances and                      1
         other substantial benefits in kind could not be provided in t-he event of
         residence or stay by a worker or member of his . family in a Member State
         other than the competent State except with prior authorisation of the             ~
         competent institution on whose behalf, those benefits were awarded .                            j
 ---pagebreak--- Decision NOi 45 of the Administrative Commission on Social Security for
Migrant Workers ( 1 ) Listed those substantial benefits to which
the competent institution could refer so as        authorise a worker to proceed
to the territory of another Member State for the purpose of there receiving
the care appropriate to his state of health .
The procedure for prior authorisation was revoked upon the adoption of
Regulations 1408 / 71 and 574 / 72 . In fact / Articles 17 ( 7 ) and 60 ( 6 ) of
Regulation 574 / 72 provide that the institution of the place of residence
must inform the competent institution of every decision relating to the
award of those benefits . The latter institution has 15 days in which to
raise any objection and to state the reasons on which such objection is
based , taking account especially of the medical grounds for the award of
such a benefit .
These Articles are to be applied by analogy to all cases concerning the
provision     of benefits in kind in the event of stay or residence in a Member
State other , than the competent State .
Decision No . 93 of the said Administrative Commission ( 2 ) which replaced
Decision No . 45 has a different legal basis, namely Article 24 of Regula­
tion 1408 / 71 which concerns the specific case of export of sickness benefits
which continue to be provided by the competent institution of a Member State
after the worker has become affiliated to the institution of another Member
State .
                                                           «
So as to avoid confusion between two different situations the Administrative
Commission is of the view that Decision No . 93 should only be applied in
respect of this last case . In all other eventualities it was felt that
the Decision should not be used but be replaced by a lump sum amount fixed
by the Administrative Commission and reviewed periodically .
 ( 1 ) O.J. 1904 No . 14 / p. 197 .
 ( 2 ) O.J. C 105 / 14.9.1974 , p. 1 .
                                          Ν
 ---pagebreak---                                   -  15-
     These amendments proposed will correspond better with the Limitation on the
     power of appreciation by the competent institution such as results from the -
     present regulations , especially after the decision of the Court of Justice in
     the Pierik Case ( 1 ). They also meet a need for simplification . In fact
     in the light of the rapid development in medical techniques , the adaptation
     of the list would' have required lengthy work which would have been particularly
     delicate because of the important differences which exist between Member States *
    national policies concerning health .
12. Article 4 ( 2 ) and ( 3 ) of the Proposal concerning amendments to Articles 40
     and 44 ( 1 ? of Regulation 574 / 72 .
    The reason for the amendments to these provisions is the same as that
    for amending Annex IV to Regulation 1408 / ?1 . See paragraph 2 of
    this Memorandum .*
    ( 1 ) Reports of cases before the Court 1979 - 5 at page 1977 .
 ---pagebreak---                                     '  - 16 -
13 . Article 5 of the Proposal concerning amendments to Annex 2                            !
       of Regulation 574/72 .                                                              |
       1 . Draft amendment to Section B I # Denmark with the exception
           of Greenland :                                                   *
           ( a ) At point , 2 , Invalidity ,^) rehabi litation,this matter falls
                 within the jurisdiction of the Communes since the entry into
                 force of the Law on Social Assistance .
           ( b ) At point 5 , Death grants , the removal of the reference to insurance
                 for accidents at work and occupational diseases is explained by
                 the fact that death grants are not . awarded under the law on
                 insurance against industrial injuries which superseded the Law
                 on accident insurance . . '                                  •         .   I
                                              '                                 .           Î
      2 . Draft amendment to Section B, II , Greenland : •                                 j
           ( a ) At point _1 , s.ickness and maternity benefits in kind , the responsibi - ;
                 lity for this benefit has now passed to the Health Service Commission
                 in Greenland.                                                              j
           ( b ) at point„4 , Family benefits ( family allowances ), the responsibility'
                 for these benefits has now passed to .the Regional Employment and
                 Socia I AffairsOffice .
      3 ." Article 13 ( 2 ) Cd ) of Regulation 1408 / 71 was amended by Article 1 ( 1 )
           of Regulation 1517 / 79(1 ), so as to allow conscientious objectors who
           perform a civilian service to benefit from the said Regulation 1408 / 71
           in the same way as persons who perform a military service .
           The suggested amendment to Annex 2 is the -consequence of that amendment
           to Article 13 ( 2 ) ( d ) and is intended to identify the competent institu-
        .  tion within the Federal Republic of Germany , for the purpose of
           sickness insurance , in respect of members of the family of the persoii
           performing a civilian service .
 ( 1 ) O.J. No . L 185 of 21.7.1979 . page 1 .
 ---pagebreak---                                       - 17 -
14 - Article 6 of the Proposal concerning amendments to Annex 3
     of Regulation 574 / 72 .
      1 . Draft amendments to Section B. Denmark , B. Greenland
          at I 1 and II 1 .
          Both amendments reflect internal changes in Danish administration
          concerning the designation of institutions when the place of stay
          or residence is Greenland .
     2 . Draft amendment to Section I United Kingdom .
          The modification which is'being proposed here is purely formal and
          results from a change in nomenclature of part of the United Kingdom 's
          competent institution .
15 - Article 7 of the Proposal concerning an amendment to Annex 9
     of Regulation 574 / 72 .
     Annex 9 of . Regulation 574 / 72 sets out the social security schemes to be
     taken into account for the purpose of calculating the average annual cost
     of benefits in kind when dealing with the refund of such benefits under
     Art i c les 94 ( 3 ) ( a ) and 95(3)(a ) of the said Regulation .
     In her present entry at Annex 9 , Denmark recites , . inter alia , the law on
     hospital services and the law on rehabilitation . The law on rehabilitation
     in Denmark has been repealed and the corresponding provisions have been
     laid down in the law on social assistance which entered into force on
     1 April 1976 . The present amendment is intended to reflect that change .
 ---pagebreak---                                        - 18 -
16. Article 8 ( 1 ), ( 2 ), ( 3 ), ( 4 ) and ( 5 ) ( a ) of the Proposal concerning
    common amendments to Annex 10 of Regulation 574 /72 in respect of
    Sections B. Denmark , C. Germany , E. Ireland , H. Netherlands and
    I. United Kingdom .
    In order to understand the purpose of the proposed amendments to the above
    mentioned Sections in Annex 10 , it is necessary to explain the reasons for
    a previous set of amendments to Regulation Nos . 1408 / 71 and 574 / 72 .
    (i )  Regulation 1517 /79 effected amendments to Article 17 of Regulation 1408 / 71
          and Article 11 of Regulation 574 /72 .
          The amendment to Article        17 allowed for designated authorities of
          Member States , by common       agreement and in the interest of certain
          workers or categories of        workers , to make exceptions to the provisions
          in that Regulation which        deal with the determination of the legislation
          applicable . >                                        .   .
          Article 11 ( 1X of Regulation 574 / 72 was also amended so as to take account
          of the said amendment to Article 17 and to make provision for the formali­
          ties which needed to be concluded where agreements of the type described :
          had been' reached between designated authorities.'
    Cii ) Article 14 ( 1 ) ( c > of Regulation 1408 / 71 makes provision for determining
          the legislation applicable ,broadly , in circumstances where either
          the worker is employed in two or more Member States and resides^ in one of
          them or where he works in two or more Member State a,nd is resident in none
          of them . Where in compliance with this provision the legislation of one
          Member State is determined as being applicable in respect of the worker ,
          the new Article 12a. of Regulation 574 / 72 which was adopted by Regula­
          tion 1517 /79 , is intended to improve the material conditions in which
          a worker may be made so subject . Article 12a is also intended to
          facilitate the collection of contributions and as a consequence to assure
          a better protection of the worker when he invokes his right to benefit .
          To' achieve this , Article 12a confers functions on institutions which are
          designated by the competent authorities of Member States .
                                                                                         *
 ---pagebreak---                                    - rt-
     Article A ( 10 ) of Regulation 574 / 72 provides that the institutions designated
    by the competent authorities in pursuance of Articles 11 ( 1 ) and 12a of that
    Regulation are to be listed in Annex 10 . As, a result amendments are now
    being proposed to that Annex so that the authorities designated for
    the purposes of the said Articles in Denmark , the Federal Republic of
    Germany , Ireland , the Netherlands and the United Kingdom may be identified .
17. Article 8 ( 5 ) ( b ) of the Proposal concerning an amendment to Annex 10 .
    I. United Kingdom .                            ,       N
    The reason for the amendment suggested here is the same as that described
    at paragraph 14 ( 2 ) of this Memorandum .
 ---pagebreak---                                        - 2o-
 Proposal for a Council Regulation amending Regulation ( EEC ) No 1408 /71
on the application of social security schemes to employed persons and
their families moving within the Community and Regulation ( EEC ) No 574 /72
fixing the procedure for implementing Regulation < EEC ) No 1408 /71
TIBS COLETGIL OP THE' EUROPEAN <X)IMtWITIES ,
Having regard to the Treaty establishing the European Economic Community>
and in particular Article 51 "thereof,
Having regard to Council Regulation ( EEC ) No . 1408 / 71 of 14       June 1971
on the application of social security schemes to employed persons and
their families moving within the Community ( 1 ), as last amended by Regulation
( EEC ) No . 1517/ 79 ( 2 ), and in particular Article 97 thereof ,
Having regard to Council Regulation ( EEC ) No . 574 / 72 of 21       March " 1972
fixing the procedure for implementing Regulation ( EEC ) No . 1408 / 71 on the
application of social security schemes to employed persons and their
families moving within the Community ( 3 ), as last amended by Regulation
( EEC ) No . 2615 / 79 ( 4 ), and in particular Article 121 thereof ,
Having regard to the proposal from the Commission ( 5 ), drawn up after
consulting the Administrative Commission on Social Security for Migrant
Workers ,
Having regard to the opinion of the European Parliament 06 ),
Having regard to the opinion of the Economic and Social Committee ( 7 ),
( 1)-0.J. No . L 149, 5.7.1971 , p. 2 .
( 2 ) O.J. No . L 185 , 21.7.1979, p.-1 .
( 3 ) O.J. No . L 74 , 27.3.1972 , p. 1 .
( 4 ) O.J. No . L 301,28.11.1979 , p „ 5 .
( 5 ) O.J . No .
( 6 ) O.J. No .
( 7 ) O.J. No .
 ---pagebreak--- Uhcrcas the experience gained from implementing Regulation (EEC) N OS .* 1408/71
and. (EEC) 574/ 72 has revealed the need to make some improvements to those
Regulations ; whereas , consequently , the discretionary power of on ' institution
of a Member State should be extended in granting or refusing authorization to
a worker going to another Member State to receive appropriate medical treat­
ment ;                                                                      .
Whereas , an institution of the place of stay or residence in one Member State
which has provided benefits in kind in respect of an injury occurring within .
that State on behalf of a competent institution in another Member State should
have a right to subrogation or direct action, provided for under its own legis­
lation ,             against the third party liable for that injury notwith­
standing the existence of "a waiver agreement on reimbursement between the two
States ;
Whereas changes         in Belgian      law  /
                                                 have made it necessary to amend
Annex V to Regulation ( EEC ). No . 1408/ 71 so as to facilitate the award of
family allowances by that State ;
Whereas changes in Danish       Law make        \ it necessary to amend existing
entries in Annex V ;
Whereas it is necessary to provide in the said Annex V a rule of coordination
where there have been periods of residence , or as the case may be insurance ,
completed in both Denmark and another Member State ;
Whereas it is necessary to make provision in the said Annex V enabling
                                                                        j
German institutions both to facilitate accounting procedures between themselves
and also to take account of periods completed in other Member States during
which entitlement to sickness benefit in kind existed, so as to ensure that
pensioners are        insured against sickness within the Federal Republic of
Germany ;
Whereas it is necessary to amend Annex V so as to make provision for inclusion
of the life annuities for elderly persons provided under French law ;
 ---pagebreak---                                  -η -
Whereas the said Annex V" should reflect those changes
which have occurred in United Kingdom          law       concerning the
abolition of the conditions which needed to be satisfied with regard
to nationality and place of birth ;
Whereas it is necessary to simplify the procedure for receipt of
substantial benefits in kind where the worker is resident in a Member
State other than the competent State ;
Whereas it is necessary to reflect a series of amendments which are
consequential upon the adoption      of   Regulation ( EEC ) No . 1517 / 79 ;
Whereas     the opportunity should be taken to correct certain cross -               *
references in both Regulation     ( EEC ) No . 1408/ 71 and Regulation ( EEC )
No . 574 / 72 ;
Whereas it is necessary to make       a series of amendments      • to the
Annexes of Regulation ( EEC ) No . 574 / 72 which are necessary as a result of changes
in description or nomenclature adopted by Denmark and the United Kingdom ;
HAS ADOPTED THIS REGULATION :
 ---pagebreak---                                           ARTICLE 1
The Articles of Regulation (EEC) NO 1408/71 are               amended as follows :
!• The second subparagraph of Article 22(2 ) , i s replaced by the following :
     "The authorization required under paragraph l(c) cannot "be refused if the
     treatment in cfuestion is among the benefits provided for "by the legislation
     of the Member State on whose territory the person concerned resides and if
     he cannot be given such treatment in time , taking account of his state of
     health ."
 2 . The following is added after Article 93(2 ):
     " 3 . Where / in accordance with the provisions of Article 36 ( 3 ) and / or
             Article 63 ( 3 )                     two or more Member States or
             the competent authorities of those States have concluded an
             agreement to waive reimbursement between institutions under their
             jurisdiction , any rights arising against    third-party   liable
             for injury shall be regulated as follows : '
      ( a ) where the institution of the Member State of stay or residence awards
             benefits to a person in respect of an injury which was sustained
             within its territory , that institution , in accordance with the
             legislation which it administers , shall exercise the right to
             subrogation or direct action against the third party liable to provide
             compensation for the injury ;
     ( b ) for the purpose of implementing ( a ) . above,
             ( i ) the person receiving benefits shall be deemed to be insured
                   with the institution of the place of stay or residence , and
           ( ii ) that institution shall be deemed to be the debtor institution .
     ( c ) Paragraphs 1 and 2                     shall remain applicable in respect
            of any benefits not covered by the waiver agreement referred to in
            this paragraph ".
 ---pagebreak---                                      -<ry-
                                   ARTICLE 2
Annex IV to Regulation i E EC ) No » 1408 / 71    -j s  amended as follows
In the heading of Annex IV,-    "( Article 40 ( 3 ) of the Regulation )",
is    replaced    by           "( Article 40 ( 4 ) of the Regulation )".
 ---pagebreak---                                          ARTICLE 3
Annex V to Regulation ( EEC ) No . 1408/ 71            is     amended as follows :
1 . In section A, Belgium ,the following paragraph             is       added after
    paragraph 4 :
    " 5 . For the purposes of the application of Articles 72 and 79 ( 1 ) ( a )
             of the Regulation , account shall be taken        of
             (i)        periods of employment and / or insurance completed under
                   the legislation of another Member State , and             i
           ( ii ) residence in another Member State where residence conditions
                   must be satisfied under the legislation of that State , in cases
              i              ....               -       '           -    ■
                   where entitlement under Belgian legislation is subject to the
                   condition that for a specified prior period the qualifying
                   conditions for family allowances under the scheme . for workers
  '  '   ,              | •                   •                                '       •
                   must have been satisfied".                     . V                ,
                                                          .                      ' '
2 . Section B , Denmark/ shal I be amended as follows :
    ( a ) Paragraph 1 shall be replaced              by the following :
             " 1 . Any person who , from the fact of pursuing . an activity as an
                   employed person ,
                   ( a ) is subject to legislation' on accidents at . work and
                          occupational diseases    for the period prior to 1 September
                            1977, or *
                   ( b ) is covered by the law on supplementary pensions for employed
                          persons ( ATP ) for a period commencing on or after
              '           1 September 1977,
                   shall be considered as a worker within the meaning of Article 1
                   ( a ) ( ii ) of the Regulation".-
 ---pagebreak--- ( b ) Paragraphs 4 and 5 shall be . replaced              by the following
      " 4 . Workers , applicants for pensions and pensioners with members
              of their family referred to in Articles 19, 22 ( 1 ) and ( 3 ),
              25 ( 1 ) and ( 3 ), 26 ( 1 ), 28 < a >> 29 and 31 of the Regulation ,
              resident'or staying in Denmark , shall be entitled to benefits
              in kind on the same terms as those laid down by Danish legislation
            • for persons who ,under the law on the Public Health Servi ce , belong
              to class 1 .
        5 . Article 1 ( 1 ) No . 2 of the Law on old age pensions , Article 1 ( 1 )
              No . 2 of the Law on invalidity pensions and Article 2 ( 1 ) No . 2
             of the Law on widows'pensions,are not applicable in respect of
             workers or their survivors whose residence is in the territory of
              a Member State other than Denmark ."
( c)   The following        is added after paragraph 11 :
      " 12 . Where , by virtue of Danish legi slation,the Danish pension is
               calculated on the basis of periods of residence completed by a
               person other than the. person who completed those periods of
               residence which are taken into account by one or more other
               Member States for the purpose of applying the provisions of Title
               III , Chapter 3 of the Regulation , the Danish theoretical amount
               and pro-rata pension amount , calculated in accordance with Article
               46 ( 2 ) of the Regulation^shall be based upon the periods of
               residence and 'insurance completed by the latter person ".
 ---pagebreak--- 3 . In Section C , Germany :
    ( a) In paragraph 5 » "the words " including retired persons"      are    replaced
         by the words " excluding retired persons".
    ( b) The following is added after paragraph 10 :
         " 11 . For the purpose of the application of German legislation on ■
                compulsory insurance of pensioners in respect of sickness
                insurance provided for in Article 165(1) ( 3) ( a) of the Law
                on social insurance (R.V.O. ), periods of insurance or
                residence completed under the legislation of any other Member
                State and during which the person concerned was entitled to
                benefits in kind in the event of sickness , shall be taken into
                account , to the extent necessary, as periods of insurance com­
                pleted under German legislation in so far as they do not ovej>-
                lap with periods of insurance completed under that legislation". \
 ---pagebreak--- In Section D , France , ; the, following is added after paragraph 1(c ):
"( d ) The preceding provisions shall apply by analogy             in respect
        of the award of a life annuity ( secours viager ). The condition
        of residence in French territory at the time of the claim provided
        for in ' •                . ( a ) of this paragraph shall not be invoked ,
        however , against the widow of a recipient of an allowance for
        elderly persons who was residing with that recipient in the territory
        of another Member State when he died ".
In Section I. United Kingdom :                  .                                  (
( a ) Paragraph 5          is replaced by the following :
       " 5 . Any worker who is subject to United Kingdom legislation in
             accordance with Title II of the Regulation shall be treated
             for the purpose of entitlement to attendance allowance as if
             he had been normally resident within the United Kingdom and
             had been there during any period of '-xuirance or employment
             which he may have completed within the terr-:*ory or under
             the legislation of another Member State".
 ( b) Paragraph 8 is                deleted and the ensuing paragraphs renumbered
        accordingly .
   ( c) 1>- iv. renumbered paragraph 11 /             .     "domiciled" is replaced
          by "" - '. -.arily resident".!          • ,
                      \
                           ■■ \
                              , \
                                 - \
                                             x
                                        "      V­
 ---pagebreak---                                       . -tf -    - ' -
                                   . ARTICLE 4
The Articles' of Regulation ( EEC ) No . 574 / 72         are     amended as follows :     ,
1 . ( a ) In Article 17 ( 2 ), in both places where it occurs ,                  " three "
           is replaced by " six ".                          '
     < b ) In Article 17 ( 7 ) the first sentence          is  "  replaced by the following
           " The institution of the place of residence shall notify the competent
            institution in advance of every decision relating to the granting
           of benefits in kind where the amount to be reimbursed exceeds a lump
           sum which is fixed and periodically reviewed by the Administrative
           Commi ssion".
2 . In Article 40 , " Article 40(3 ) of the Regulation " . is replaced by
    " Article 40(4 ) of the Regulation "..
3 . In Article 44 ( 1 ),         '     .            • " Article 40 ( 3 ) of the Regulation"
    is replaced           by   ,         , " Article 40 ( 4 ) of the Regulation".
4 . ( a ) In. Article 60 ( 2 ), in both places where it occurs ,                 " three"
           is replaced by " six ".
    ( b ) Ir\ Article 60 ( 6), the first sentence .       is      replaced by the
           fol lowing :
           " The institution of the place        of   residence shall notify the competent
             institution in advance of every decision relating to the granting of
             benefits in kind where the amount to be reimbursed exceeds a lump sum
             which is fixed and periodically reviewed by the Administrativet
             Commission".                           '
 ---pagebreak---                                           - Jo-
                                        ARTICLE 5
Annex     2 to Regulation ( EEC ) No . 574 / 72       is      amended as follows :
1.   inSection B. 'Denmark , Parti . Denmark with the exception of Greenland :
    ( a)   " The competent rehabilitation centre" in the right hand column of
           paragraph 2(b ) is "replaped by
          " The social commission of the commune in which the beneficiary
          resides . In the communes of Kdbenhavn , Odense , Aalborg and Arhus :
          'Magi straten' ( the communal admini stration )",
    ( b ) Paragraph 5      is replaced by the following :
          " 5 . Death grants : The social commission of the commune in which
                                  the beneficiary resides .      In the communes of
                        '         Kdbenhavn , Odense - A'alborg_and Arhus : 'Magi straten '
                                  ( the communal administration )     .
2.    InSection B , Denmark , Part II - Greenland :
    (a)     In the        right hand column      of point 1 ,     " Landslaegen ( Regional
          Public Health Office in Greenland ), Godthab"- is replaced-
            by               Bestyrelsen for sundhedsvaesenet i GTénland ( Health
          Service Commission in Greenland ), Godthab ;
    ( b)    In the        right hand column of point 4 ,
          " The competent • kaemner * ( administrator of Communal Funds )"
            is replaced       by      " Arbejds - og socialdirektoratet , ( Regional
           Employment and Social Affairs         Office ), Godthab ".
3 . In Section C, Germany , . in the left hand column of paragraph 1(c ),
    " or for civilian service " is inserted after " armed forces ".
 ---pagebreak---                                          - fr-
                                        ARTICLE 6
Annex 3 to Regulation ( EEC ) No . 574 / 72       is  .• amended as follows :
1 . In Section B , Denmark , B , Greenland :
( a)     In the right hand column of I 1 ( institutions of the place of :
                              \
         resi dence ) , ,
       " The competent communal administration (" Kaemner " - administrator
       of Communal Finds )"-     is replaced by ,
       " Bestyrelsen for sundhedsvaes enet i Grønland ( Health Service        •
     , Commission in Greenland ) , Godthåb"
( b ) In the right hand column of II 1 , ( institutions of the place of
       stay ),
       " The competent cpmmunal administration ( 'Kaemner' - administrator of
       Communal Finds )",    is replaced by    ;-
       " Bestyrelsen for sundhedsvaesenet i Grtfnland ( Health Service
       Commission in Greenland ), Godthab ."
2 . . In Section I, United Kingdom , paragraph 2 , in the entry opposite the
      words    " Great Britain,!' for the words " Overseas Group "  is replaced
     by " Overseas Branch ".
 ---pagebreak---                                         -M -
                                     ARTICLE 7
   The entry at Annex 9, Section B , Denmark of Regulation ( EEC ) No . 574 / 72
' is replaced     by       the following :
  " The average annual cost of benefits in kind shall be calculated by taking
  into account the schemes set up by the Law on the Public Health Service ,
  the Law on hospital services and, in respect of the cost of rehabilitation
  the Law on social assistance ".
 ---pagebreak---                                         ~ói '
                                      ARTICLE 8
 Annex 10 of Regulation ( EEC ) No . 574 / 72        is       amended as follows :
 1 . ( a ) In Section B ,, Denmark , 1 Denmark with the exception of
            . Greenland , " Article 12 a ," is inserted in paragraph 1 after
           " the reference " Articlev 11 ( 1 )".
                                              ν                                 ·
      ( b ) In Section B , II Greenland , in the right hand column of             . "
               paragraph 2 , " The competent • Kaemner * (-administrator of
               Communal Funds )" is replaced by "The competent communal
               administration ".
2 . In Section           Germany , paragraph 2 ,
     " For the purposes of applying Article 14 ( 1 ) ( a ) ( i ) of the Regulation
     in conjunction with Article 11 ( 1 ) of the. Implementing Regulation"'
       is replaced by                                                 ,
     " For the purposes of applying Article 14 ( 1 ) ( a ) ( i ) and Article 17
     of the Regulation in conjunction with Article 11 ( 1 ) of the Implementing
     Regulation and for the purpose of applying Article 14 ( 1)(c ) of the
     Regulation in conjunction with Article 12a of the Implementing Regulation ."
3 . In Section E , Ireland , in the left, hand column of'Article 12 a "
    is inserted after the reference to " Article 11(1 )",
4 . In Section H, Netherlands , in the left hand column paragraph 1 , " 12a"
    is inserted after the reference to "Articles 6(1 ), 11(1 )".
5.         Section I , United Kingdom ,
     ( a ) in the introductory sentence , " Article 12a " is inserted after
             the reference to " Article 11(1 )".
             .                              .            ■.      ■- i   ■ ■ .
     ( b ) i,n the entry opposite "Great Britain", "Overseas Group ", is replaced
             by "Overseas Branch".
 ---pagebreak---                                           ARTICLE 9
1 . This Regulation shall enter into force on the day of its publication
     in the Official Journal of the European Communities .
2 . Article 2 shall be applicable with effect, from 1 July 1976 .
     Article 3 ( 3 > ( a ) shall "be applicable with effect from 1 January 1979 .
   . Article 3 ( 3 ) (b) shall be applicable with effect from 1 July 1978 .
     Article 3 ( 5 ) ( a ) and ( b ) shall be applicable with effect from 14 : January 1980 .
     Article 3 ( 5 ) ( c ) shall be applicable with effect from 2 July 1973 .
     Article 4 ( 2 ) and ( 3 ) shall be applicable with effect from 1 July 1973 .
     Article 5 shalL be applicable with effect from 21 July 1979 .
     Article 8 ( 2 ) shall be applicable with effect from 1 October 1979 .
  /
     Article 8 ( 3 ) ( 4 ) and ( 5 ) < a ) shall be applicable with effect from 21 July 1979 .
                       »
     Articles 6 and 8 ( 5 ) Cb) shall , be applicable with effect from 1 November 1976 .
This Regulation shall be binding in its entirety            and directly applicable
in all Member States .
Done    at Brussels .,        .     • 1980 .                  For-' the- Council