CELEX: 51988PC0027
Language: en
Date: 1988-02-02
Title: PROPOSAL FOR A COUNCIL REGULATION ( EEC ) AMENDING REGULATION ( EEC ) NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS, TO SELF-EMPLOYED PERSONS AND TO MEMBERS OF THEIR FAMILIES MOVING WITHIN THE COMMUNITY AND REGULATION ( EEC ) NO 574/72 LAYING DOWN THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71

24. 2. 88                             Official Journal of the European Communities                              No C 52/5
                                                              II
                                                      (Preparatory Acts)
                                                 COMMISSION
             Proposal for a Council Regulation (EEC) amending Regulation (EEC) No 1408/71 on the
             application of social security schemes to employed persons, to self-employed persons and to
             members of their families moving within the Community and Regulation (EEC) No 574/72
                       laying down the procedure for implementing Regulation (EEC) No 1408/71
                                                     COM(88) 27 final
                             (Submitted by the Commission to the Council on 5 February 1988)
                                                        (88/C 52/04)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                          Whereas, consequently, it is appropriate to disregard the
                                                                  criterion of residence of the members of the worker's
Having regard to the Treaty establishing the European             family for the purposes of granting family benefits;
Economic Community, and in particular Articles 51 and
                                                                  Whereas, on the other hand, the criterion of employment
235 thereof;
                                                                  adopted in Articles 73 (1) and 74 (1) of Regulation
                                                                  (EEC) No 1408/71 ensures equal treatment as between
Having regard to the proposal from the Commission,                all workers subject to the same legislation; whereas the
prepared following consultation with the Administrative           choice of this factor of attachment is necessary for
Commission on Social Security for Migrant Workers,                reasons of simplicity, fairness and for reasons allied to
                                                                  the coherence of the system of Regulation (EEC) No
                                                                  1408/71, which, generally speaking, accords priority to
Having regard       to  the   opinion   of  the   European
                                                                  the lex loci laboris (law of the place of work) for the
Parliament,
                                                                  purpose of determining the legislation applicable;
Having regard to the opinion of the Economic and                  Whereas it is therefore appropriate to apply this solution
Social Committee,                                                 also to workers subject to French legislation; whereas it
                                                                  is necessary to amend along these lines Regulations
                                                                  (EEC) No 1408/71 and No 574/72 (3), as last amended
Whereas under Article 99 of Council Regulation (EEC)
                                                                  by Regulation (EEC) No 3811/86; whereas the absence
N o 1408/71 ('), as last amended by Regulation (EEC)
                                                                  of a uniform solution as referred to in Article 99 of
No 3811/86 (2), the entire matter of the payment of
                                                                  Regulation (EEC) No 1408/71 at the time of the
family benefits to members of the family who do not
                                                                  extension of the categories of persons covered by Regu-
reside in the competent State must be re-examined in
                                                                  lations (EEC) No 1408/71 and No 574/72 to include
order to reach a uniform solution for all Member States;
                                                                  self-employed workers and members of their families,
                                                                  prevented the same extension being made in the case of
Whereas by its Judgment of 15 January 1986 in Case                Articles 73 to 76 of Regulation (EEC) No 1408/71;
41/84 (Pinna), the Court of Justice declared null and             whereas it is now appropriate to extend the provisions to
void Article 73 (2) of Regulation (EEC) No 1408/71 on             cover self-employed workers and to adapt accordingly
the ground that the criterion of residence of the                 the provisions of Regulation (EEC) No 574/72,
members of the family of the migrant worker, which it
employs in order to determine the legislation applicable
                                                                  HAS ADOPTED THIS REGULATION:
to the family benefits payable to the worker, 'is not of
such a nature as to secure the equal treatment laid down
                                                                                            Article 1
by Article 48 of the Treaty and therefore may not be
employed within the context of the coordination of                Regulation (EEC) No 1408/71 is hereby amended as
national legislation which is laid down in Article 51 of          follows:
the Treaty with a view to promoting the free movement
of workers within the Community in accordance with                1. The heading of Chapter 7 of Title III is replaced by
Article 48';                                                          the following:
                                                                      'FAMILY BENEFITS'
(') OJ No L 149, 5. 7. 1971, p. 2.
O OJ No L 355, 16. 12. 1986, p. 5.                                (>) No L 74, 27. 3. 1972, p. 1.
 ---pagebreak--- No C 52/6                              Official Journal of the European Communities                                   24. 2. 88
2. Articles 72 to 75 inclusive are replaced by the                   2.     However, if the family benefits are not used by
   following:                                                        the person to whom they should be provided for the
                                                                     maintenance of the members of his family, the
    'Article 72                                                      competent institution shall discharge its legal obli-
                                                                     gations by providing the said benefits to the natural or
   Aggregation of periods of insurance, employment or                legal person who is actually maintaining the members
   self-employment                                                   of the family, at the request of and through the
                                                                     agency of the institution of their place of residence or
   Where the legislation of a Member State makes                     of the designated institution or body appointed for
   acquisition of the right to benefits conditional upon             this purpose by tHe competent authority of their
   completion of periods of insurance, employment or                 country of residence.
   self-employment, the competent institution of that
                                                                     3.     Two or more Member States may agree, in
   State shall take into account for thus purpose, to the
                                                                     accordance with the provisions of Article 8, that the
   extent necessary, periods of insurance, employment or
                                                                     competent institution shall provide the family benefits
   self-employment completed in any other Member
                                                                     payable under the legislation of those States or of one
   State, as if they were periods completed under the
                                                                     of those States to the natural or legal person who is
   legislation which it administers.
                                                                     actually maintaining the members of the family, either
                                                                     directly or through the agency of the institution of
   Article 73                                                        their place of residence.'
   Employed or self-employed persons the members of               3. Article 90 is deleted.
   whose families reside in a member State other than the
   competent State                                                4. Article 94 (9) is replaced by the following:
   An employed or self-employed person subject to the                '9.     The family allowances received by frontier
   legislation of a Member State shall be entitled, in               workers employed in France in respect of the
   respect of the members of his family who are residing             members of their families residing in another Member
   in another Member State, to the family benefits                   State on the day preceding the entry into force of
   provided for by the legislation of the former State, as           Regulation (EEC) No 0000/00 shall continue to be
   if they were residing in that State, subject to the               paid at the expense of the French competent
   provisions of Annex VI.                                           institution at the rates, within the limits and according
                                                                     to the procedures applicable on that date as long as
                                                                     their amount exceeds that of the benefits that would
   Article 74
                                                                     be due after the entry into force of Regulation (EEC)
   Unemployed persons the members of whose families                  No 0000/00 and as long as the persons concerned are
   reside in a Member State other than the competent                 subject to French legislation. Account shall not be
   State                                                             taken of interruptions lasting less than one month,
                                                                     nor of periods during which unemployment or
   An unemployed person who was formerly employed                    sickness benefit is drawn.
   or self-employed and who draws unemployment                       The procedure for implementing this paragraph shall
   benefits under the legislation of a Member State shall            be determined by mutual agreement between the
   be entitled, in respect of the members of his family              Member States concerned or by their competent auth-
   residing in another Member State, to the family                   orities, after the Administrative Commission has
   benefits provided for by the legislation of the former            delivered an opinion.'
   State, as if they were residing in that State, subject to
   the provisions of Annex VI.                                    5. Article 99 is deleted.
                                                                  6. Annex II, Part II is amended as follows:
   Article 75
                                                                     (a) the text appearing at E. France is replaced by the
   Provision of benefits                                                  following text:
                                                                          'The allowance for young children           provided
   1.     Family benefits shall be provided, in the cases
                                                                          without a means test.'
   referred to in Article 73, by the competent institution
   of the State of the legislation of which the employed             (b) the text appearing at I. Luxembourg is replaced
   or self-employed person is subject and, in the cases                   by the following text:
   referred to in Article 74, by the competent institution                '(a) Antenatal allowances
   of the State under the legislation of which an unem-                    (b) Childbirth allowances.'
   ployed person who was formerly employed or self-
   employed receives unemployment benefits. They shall            7. In Annex VI, E. France,
   be provided in accordance with the provisions admin-
                                                                     (a) paragraph 4 is replaced by the following:
   istered by such institutions, whether or not the natural
   or legal person to whom such benefits are payable is                   '4.   A person who is subject to French legis-
   residing or staying in the competent State or in                       lation pursuant to the provisions of Article 14 (1)
   another Member State.                                                  or Article 14a (1) shall be entitled, in respect of
 ---pagebreak--- 2 4 2 ^                                         Cofficial]ournalofthe European Communities                                                         NoC52B7
         themembers of hisfamily accompanyinghimon                              (c) for the purposes of subparagraphs (a) and (b)^
         theterritory of the ^ i e m b e r ^ t a t e i n ^ v h i c h h e i s        where periods of employment or self
         pursuing an occupations ^o the following family                            employment completed under the legislation of
         benefits^                                                                  one member ^tate are expressed in units
         (a) The allowance for young children provided                              different from those which are used for the
                for by Article L 515 of the social security                         calculation of family benefits under the legis
                Code for the period during ^vhich this                              lation of another Aiember ^tate to which the
                allowance ispaidsub^ectto ameans test^                              person concerned has also been subject during
                                                                                    thesameperiod^ theconversionshallbecarried
         (b) the family allowances provided for in Articles                         o u t i n a c c o r d a n c e w i t h t h e p r o v i s i o n s o f Article
                L 5 2 4 a n d L 5 3 I o f the social security C^odeB                 15 (3) of theimplementingRegulation^
    (b) The following paragraph7isadded^                                        (d) notwithstanding the provisions of subparagraph
                                                                                    (a)^ in respect of dealingsbetween the member
         5^.      Notwithstanding the provisions of Articles                        states listed in Anne^ ^ to the implementing
         73 and 74 of the Regulations the housing                                   Regulations the institution bearing the costs of
         allowance referred to in Article 5t0 (5) of the                            the family benefits by reason of the first
         social security Code^ the housing allowances                               employment or selPemployment during the
         financed by the National Housing Assistance                                period concerned                    shall bear such costs
         Rund and the removal grants introduced by                                  throughouttheentirecurrentperiodB
         Article tD(h) of the L a ^ of 22 August t ^ D shall
         be granted only to persons concerned residing on                    2. The heading of C h a p t e r 7 o f f i d e IV is replaced by
         RrenchterritoryB                                                       thefollowing^
                                                                                family benefits^
                                 B^c^2
                                                                             3 In Article ^ ^
Regulation (EEC) No 574B72 is hereby amended as
follo^s^
                                                                                (a) the titlepreceding Article ^D i s r e p l a c e d b y the
                                                                                    following^
  1. ArticlelOa is replaced by the follo^ving^
                                                                                     lmplementationofArticle7^ and Article 7^(1)
                                                                                    and (2) of the Regulations
     ^ules applicable ^here an employed or selfemployed                         (b) the title under Article ^D is deleted.
     person is subject successively to the legislation of
     several member states during the same period or                            (c) paragraph4is replaced by the following^
     p a r t o f aperiod
                                                                                    ^4.       The competent authorities of two or more
                                                                                    ^viember^tates may agree on specialprocedures
     ^ h e r e an employed or self employed person has                              for thepayment of family benefits^inparticular
     been subject successively to the legislation of t^vo                           withaviewtofacilitatingtheimplementationof
     member states during the period separating t^vo                                Article 75 (1) and (2) of the Regulation, ^uch
     dates for the payment of family benefits as provided                           agreements shall be communicated to the
     forbythelegislationof o n e o r b o t h o f t h e ^ v i e m b e r              Administrative C^ommissionB
     states concerned^ thefollo^vingrulesshallapply^
                                                                             4. Article ^7 is deleted.
     (a) the family benefits ^hich the personconcerned
            may claim by virtue of being subject to the legis
            lation of each one of these states shall                         5. Article ^^ is replaced by the following^
            correspond to the numberof daily benefits due
            under the relevant legislation, ^ h e r e such legist                implementation of Article74 of the Regulation
            lation does not provide for daily benefits^ the
            family benefits shall be granted in p r o p o r t i o n s
            the length of time during ^vhich the person                         The provisions of Article ^D of the implementing
            concernedhasbeensub^ecttothelegislationof                           Regulation shall apply by analogy to unemployed
            each one of the member states in relation to the                    persons who were formerly employed or self
            period fi^edbythelegislationconcerned^                              employedand w h o a r e c o v e r e d b y A r t i c l e 7 4 o f the
                                                                                RegulationB
      (b) ^vhere the family benefits have been provided by
            an institutionduringaperiod^vhenthey should
                                                                             D Article ^^ is deleted.
            have beenprovidedbyanother institutions there
            shall be an ad^ustmentof accounts between the
            said institutions^                                               7 Article ^ and the title preceding it are deleted.
 ---pagebreak--- No C 52/8                             Official Journal of the European Communities                                  24. 2. 88
 8. Article 101 (1) is replaced by the following:                     (c) in C. Germany, paragraph 8 is replaced by the
                                                                          following:
    '1.     Pursuant to Articles 36, 63 and 70 of the
    Regulation, the Administrative Commission shall                       '8. For the purposes of applying Articles 36
    draw up a statement of claims in respect of each                      and 63 of the Regulation and Article 102 (2) of
    calendar year.'                                                       the implementing Regulation (no change)';
                                                                      (d) in E. France:
 9. Article 102 (2) is replaced by the following:
                                                                            (i) Paragraph 8 is deleted;
    '2. The reimbursements provided for in Articles
    36, 63 and 70 of the Regulation shall be made for all                  (ii) Paragraphs 9 and 10 become paragraphs 8
    the competent institutions of a Member State to the                         and 9 respectively;
    creditor institutions of another Member State                         (iii) Paragraph 8 (new) is replaced by the
    through the agency of the bodies designated by the                          following:
    competent authorities of the Member States. The
                                                                                '8. For the purposes of applying jointly
    bodies through which reimbursements have been
                                                                                Articles 36 and 63 of the Regulation and
    made shall advise the Administrative Commission of
                                                                                Article 102 (2) of the implementing Regu-
    the amounts reimbursed within the time limits and
                                                                                lation: (no change)';
    according to the procedures laid down by the said
    Commission.'                                                      (e) in G. Ireland, subparagraph 3 (b) is replaced by
                                                                          the following:
10. Article 104 (2) is replaced by the following:                         '(b) For the purposes of applying Article 70 of
    '2.     Provisions which are similar to those referred                      the Regulation and Article 102 (2) of the
    to in paragraph 1 and which, for the purposes of                            implementing Regulation: (no change)';
    dealings between two or more Member States, will
                                                                      (f) in H.Italy:
    apply following the entry into force of the Regu-
    lation, shall be entered in Annex 5 to the im-                          (i) Paragraph 5 is deleted;
    plementing Regulation. The same shall apply to
                                                                           (ii) Paragraphs 6, 7 and 8 become paragraphs 5,
    provisions agreed under Article 97 (2) of the im-
                                                                                6 and 7 respectively;
    plementing Regulation.'
                                                                          (iii) Subparagraph 6 (c) (new) is replaced by the
                                                                                following:
11. Article 120 is deleted.
                                                                                '(c) Reimbursements under Article 70 of the
                                                                                     Regulation (no change)';
12. In Annex 2, E. France:
    (a) paragraph 3 is deleted;                                       (g) in I. Luxembourg, subparagraph 8 (d) is deleted;
                                                                      (h) in J. Netherlands, subparagraph 4 (c) is deleted.
    (b) paragraph 4 becomes paragraph 3.
                                                                                            Article 3
13. Annex 10 is amended as follows:
                                                                 This Regulation shall enter into force on the day
    (a) in A. Belgium, subparagraph 6 (d) is deleted;            following its publication in the Official Journal of the
                                                                 European Communities.
    (b) in B. Denmark, subparagraph 6 (a) is replaced by
         the following:                                          It shall apply with effect from 15 January 1986.
         '(a) reimbursements pursuant to Article 36 and         This Regulation shall be binding in its entirety and
              Article 63 of the Regulation: (no change)';        directly applicable in all Member States.