CELEX: 31974Y0720(05)
Language: en
Date: 1973-03-20 00:00:00
Title: ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS DECISION NO 87 OF 20 MARCH 1973 CONCERNING THE APPLICATION OF ARTICLE 14 ( 1 ) ( A ) OF REGULATION ( EEC ) NO 1408/71 ON THE LEGISLATION APPLICABLE TO WORKERS POSTED ELSEWHERE

20. 7. 74                              Official J o u r n a l of the European C o m m u n i t i e s                     No C 86/5
          ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES
                                O N SOCIAL SECURITY FOR MIGRANT WORKERS
                                                          DECISION N o 87
                                                           of 20 March 1973
          concerning the application of Article 14 (1) (a) of Regulation (EEC) N o 1408/71
                            on the legislation applicable to workers posted elsewhere
          T H E ADMINISTRATIVE COMMISSION OF T H E E U R O P E A N C O M M U N I T I E S O N SOCIAL
          SECURITY FOR M I G R A N T WORKERS,
          Having regard to Article 81 (a) of Regulation (EEC) N o 1408/71 u n d e r which it is given
          the responsibility for dealing with all questions of interpretation arising f r o m the provi-
          sions of Regulations (EEC) N o 1408/71 and (EEC) N o 5 7 4 / 7 2 ;
          W h e r e a s Decision N o 12, published in the Official Journal            of the European Communi-
          ties N o 64 of 17 D e c e m b e r 1959 has b e c o m e invalid following the entry into force of
          Council Regulations (EEC) N o 1408/71 and (EEC) N o 574/72, but taking into account
          the provisions of the said Regulations, there are grounds for adopting a new Decision ;
          Whereas the purpose of the provisions of Article 14 (1) (a) of Regulation (EEC) N o
          1408/71 is to avoid, both in the case of workers as well as in the case of employers and
          social security institutions, the administrative complications which would result f r o m the
          application of the general rule laid down in Article 13 (2) (a) of Regulation (EEC) N o
          1408/71 where the periods of e m p l o y m e n t are of short duration in a M e m b e r State other
          than the State in which the u n d e r t a k i n g has its registered office or a place of business ;
          Whereas, in the same desire for simplification, it would be appropriate to extend the field
          of application of Article 14 (1) (a) of Regulation (EEC) N o 1408/71 to cover the case of a
          worker engaged in the M e m b e r State in which the undertaking has its registered office or
          a place of business with a view to an i m m e d i a t e posting to the territory of a n o t h e r
          M e m b e r State ;
          W h e r e a s one of the decisive criteria for the application of Article 14 (1) (a) of Regulation
          (EEC) N o 1408/71 is the existence of a direct relationship between the u n d e r t a k i n g and
          the worker it engages, and in particular the m a i n t e n a n c e of the worker's relationship to
          the u n d e r t a k i n g as an employee ;
          Acting in accordance with the provisions of Article 80 (3) of Regulation (EEC) N o
           1408/71,
          HAS D E C I D E D AS FOLLOWS :
           1.      T h e provisions of Article 14 (1) (a) of Regulation (EEC) N o 1408/71 shall also apply
          to a worker w h o is engaged in a M e m b e r State in which the u n d e r t a k i n g has its registered
          office or a place of business with a view to an i m m e d i a t e posting to the territory of
          a n o t h e r M e m b e r State in so far as there is a direct relationship between the u n d e r t a k i n g
          and the worker during the period of posting.
 ---pagebreak--- N o C 86/6                               Official J o u r n a l of t h e E u r o p e a n C o m m u n i t i e s                20. 7. 7 4
           2.        T h i s Decision shall be p u b l i s h e d in t h e Official Journal        of the European    Communi-
           ties. It shall be applicable in t h e six original M e m b e r States f r o m 1 O c t o b e r 1972 a n d , in
           a c c o r d a n c e with t h e Treaty of Accession, f r o m 1 April 1973 in t h e t h r e e n e w M e m b e r
           States.
                                                                                               The Chairman
                                                                                 of the Administrative         Commission
                                                                                                   J. DONIS
 ---pagebreak--- 20. 7. 74                           Official Journal of the European Communities                           No C 86/7
                                                  D E C I S I O N N o 89
                                                   of 20 March 1973
          c o n c e r n i n g the interpretation of Article 16 (1) and (2) of Council Regulation
          (EEC) N o 1408/71 relating to persons e m p l o y e d by d i p l o m a t i c m i s s i o n s and
                                                     consular posts
          T H E ADMINISTRATIVE COMMISSION OF T H E E U R O P E A N COMMUNITIES O N SOCIAL
          SECURITY FOR M I G R A N T WORKERS,
          Having regard to Article 81 (a) of Regulation (EEC) No 1408/71 under which it is given
          the responsibility for dealing with all questions of interpretation arising from this Regula-
          tion and from Regulation (EEC) N o 574/72 ;
          Whereas the words 'persons employed by' used in Article 16 (1) and (2) of Regulation
          (EEC) No 1408/71 could give rise to various interpretations, thus making it necessary to
          give them a uniform scope ;
          Whereas Article 14 (1) of Regulation No 3 covered employed persons or persons treated
          as such, regardless of nationality, employed in diplomatic or consular posts or in the
          personal service of officials in such posts ;
          Whereas a restrictive interpretation of Article 16 of Regulation (EEC) No 1408/71 would
          result in the abolition of the right of option previously enjoyed by employed persons and
          persons treated as such employed in diplomatic missions and consular posts who are
          nationals of the accrediting Member State or of the sending Member State ;
          Acting in accordance with the provisions of Article 80 (3) of Regulation (EEC) No
           1408/71,
          HAS D E C I D E D AS FOLLOWS :
          1.      The provisions of Article 16 (1) and (2) of Regulation (EEC) No 1408/71 shall apply
          to all workers, other than civil servants and persons treated as such mentioned in Article 2
          (3) of the said Regulation, who are employed in diplomatic missions and consular posts or
          are in the service of officials in such missions and posts.
          2.      This Decision shall be published in the Official Journal of the European Communi-
          ties. It shall be applicable in the six original Member States from 1 October 1972 and, in
          accordance with the Treaty of Accession, from 1 April 1973 in the three new Member
          States.
                                                                             The Chairman
                                                                   of the Administrative     Commission
                                                                                J. D O N I S
 ---pagebreak--- No C 86/8                       Official Journal of the European Communities                              20. 7. 74
                                                DECISION N o 91
                                                 of 12 July 1973
          concerning the interpretation of Article 46 (3) of Council Regulation (EEC) N o
          1408/71 relating to the award of benefits due under paragraph 1 of the said
                                                      Article
          THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES O N                         SOCIAL
          SECURITY FOR M I G R A N T W O R K E R S ,
          Having regard to Article 81 (a) of Regulation (EEC) No 1408/71 under which it is the
          duty of the Administrative Commission to deal with all questions of interpretation arising
          from Regulations (EEC) No 1408/71 and (EEC) No 574/72;
          Having been asked whether the adjustment provided for in Article 46 (3), second subpara-
          graph, of Regulation (EEC) No 1408/71 applies only to amounts of benefits calculated in
          accordance with Article 46 (1), first subparagraph, which exceed the amount of the bene-
          fits that would have been obtained by applying, in accordance with the second subpara-
          graph of Article 46 (1), the rules provided for in paragraphs 2 (a) and (b) of this Article, or
          whether it applies also to the latter amounts when these are equal to or higher than the
          former amounts ;
          Whereas the application of the rules laid down by Article 46 (2) (a) and (b) of Regulation
          (EEC) No 1408/71 gives the same result as that which would have been obtained by
          applying Article 28 (1) (b) of Regulation No 3 ; whereas the latter Regulation did not
          provide for the possibility of reducing the amount thus obtained ;
          Whereas the aim of replacing Regulation No 3 by Regulation (EEC) No 1408/71 was in
          particular to improve the position of workers which arose from the application of Regula-
          tion No 3 ;
          Whereas the application of Article 46 (3) to benefits under Article 46 (1) the amount of
          which is determined pro rata temporis would have the opposite effect;
          Acting in accordance with the provisions of Article 80 (3) of Regulation (EEC) No
           1408/71,
           HAS D E C I D E D AS F O L L O W S :
           1.    Article 46 (3), second subparagraph of Regulation (EEC) No 1408/71 shall only
           apply to benefits the amount of which, calculated in accordance with the provisions of
           paragraph 1, first subparagraph, of this Article, exceeds the amount that would be
           obtained by applying the rules of paragraphs 2 (a) and (b) of the said Article to the calcula-
           tion of these benefits.
           2.    This Decision shall be published in the Official Journal of the European Communi-
           ties and shall take effect on the date of entry into force of the abovementioned Regula-
           tion. It shall be applicable in the six original Member States from 1 October 1972 and, in
           accordance with the Treaty of Accession, from 1 April 1973 in the three new Member
           States.
                                                                         The Chairman
                                                               of the Administrative     Commission
                                                                            A. T R I E R