CELEX: 51989PC0370
Language: en
Date: 1989-07-20
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

No C 206/2                              Official Journal of the European Communities                                  11. 8. 89
                                                               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(89) 370 final
                                        (Submitted by the Commission on 26 July 1989)
                                                         (89/C 206/02)
THE COUNCIL OF THE EUROPEAN COMMUNITIES,                            Member States as an employed person and a self-
                                                                    employed person and/or in the context a general scheme
Having regard to the Treaty establishing the European               and a special scheme;
Economic Community, and in particular Articles 51 and
235 thereof,                                                        Whereas it is necessary to incorporate in Annex IV, B,
                                                                    all special schemes for self-employed persons within the
Having regard to the proposal submitted by the                      meaning of Articles 38 and 45 of Regulation (EEC) No
Commission        after     consulting  the    Administrative       1408/71;
Commission on Social Security for Migrant Workers,
                                                                    Whereas it is necessary to insert in Article 39 of Regu-
Having regard        to    the  opinion   of  the   European        lation (EEC) No 1408/71 a provision stipulating that the
Parliament,                                                         rules of Chapter 3 of the Regulation in the case of over-
                                                                    lapping of benefits of a different kind shall likewise be
Having regard to the opinion of the Economic and                    applicable to invalidity pensions determined under
Social Committee,                                                   Chapter 2;
                                                                    Whereas the new concept of benefits of the same kind
Whereas it is necessary to amend the provisions regu-
                                                                    within the meaning of Chapter 3 of Title III of Regu-
lating the determination and calculation of pensions in
                                                                    lation (EEC) No 1408/71 call for a new text of Article
Regulations (EEC) No 1408/71 and (EEC) No 574/72
                                                                    40 (2) of the said Regulation;
of the Council, as determined in Regulation (EEC) No
2001/83 O , as last amended by Regulation (EEC) No
. . . , that some of these amendments are linked to the             Whereas it is necessary to amend the text of
case law of the Court of Justice in this matter, other              subparagraph (a) (ii) of paragraph 3 of Article 40 of
amendments having been designed to fill existing                    Regulation (EEC) No 1408/71 so that the said
loopholes;                                                          subparagraph can likewise be applied in the case where
                                                                    an invalidity benefit is awarded which is not called an
                                                                    invalidity benefit; that consequently it is necessary to
Whereas it is necessary to delete the eighth preamble to            make a textual amendment to subparagraph (b) (i) of
Regulation (EEC) No 1408/71 rendered superfluous by                 paragraph 3 of Article 40 of Regulation (EEC) N o
the case law of the Court of Justice relating to Article 46         1408/71;
(3) of the said Regulation; that this deletion calls for a
new text of the seventh preamble to Regulation (EEC)
                                                                    Whereas the new text of Article 43 (1) and the insertion
No 1408/71;
                                                                    of the new paragraph 3 in Article 43 call for an
                                                                    amendment to the title of Section 4 of Chapter 2 of Title
Whereas the amendments to be made to Chapter 3 of                   III of Regulation (EEC) No 1408/71;
Title III of Regulation (EEC) No 1408/71 call for the
adaptation of Article 12 (2) of the said Regulation;
                                                                    Whereas it is necessary to amplify the text of paragraph
                                                                    2 of Article 43 of Regulation (EEC) No 1408/71 for the
Whereas it is necessary to amend Articles 38 and 45 of              purpose of guaranteeing that where the legislation of a
Regulation (EEC) No 1408/71 for the purpose of                      Member State does not provide for the conversion of an
clarifying the rules for taking account of the periods of           invalidity benefit into an old-age benefit, the benefit due
insurance or of residence completed in two or more                  under that legislation shall continue to be paid as long as
                                                                    the person concerned satisfies the necessary qualifying
O OJ No L 230, 22. 8. 1983, p. 6.                                   conditions;
 ---pagebreak---    11. 8. 89                            Official Journal of the European Communities                              No C 206/3
  Whereas the experience gained from implementing                  and apportionment where the result of that calculation is
  Article 43 of Regulation (EEC) No 1408/71 has revealed           equal to or lower than that yielded by the calculation
  the existence of a loophole in the case where an inva-           according only to the national legislation; that, for each
  lidity benefit awarded in accordance with Article 39 of          Member State, mention should be made in Annex IV, C,
  the said Regulation is converted into an old-age benefit         of all those cases where the two calculations could give
  without the person concerned having satisfied the                rise to a result of this kind;
  conditions regarding age required by the legislation of
  the other Member State for the purpose of acquiring a            Whereas for the purpose of protecting migrant workers
  right to that benefit; that it is necessary to fill this         and their survivors against an excessively stringent
  loophole by inserting a new paragraph 3 in Article 43            application of the national provisions concerning
  stipulating that the competent institution in the Member         reduction, suspension or withdrawal, it is necessary to
  State which hitherto had been exempted from payment              include a provision in Regulation (EEC) No 1408/71
  of an invalidity pension from the date of the conversion         laying down strict rules for the application of these
  in the other Member State shall award an invalidity              provisions;
 pension in accordance with the provisions of Chapter 3
  of Title III of Regulation (EEC) No 1408/71;
                                                                   Whereas, for the same reasons, it is necessary to insert a
                                                                   provision in Regulation (EEC) No 1408/71 stipulating
 Whereas the present paragraph 3 of Article 43 of Regu-            that, in the case of overlapping of benefits of the same
 lation (EEC) No 1408/71 has become paragraph 4 and                kind, these provisions shall be applicable only in the case
 that the text thereof should be simplified;                       of certain types of benefits and in certain specific cases;
                                                                   Whereas it is necessary to list in Annex IV, D, the types
 Whereas a provision should be inserted in Article 45 of           of benefits to which the aforesaid provisions can be
 Regulation (EEC) No 1408/71 for the purpose of                    applied in the case of overlapping of benefits of the same
 guaranteeing that for the acquisition, retention or               kind;
 recovery of the right to benefits, the insurance periods
 completed in the context of a special scheme of a
 Member State shall be taken into consideration in the            Whereas it is necessary to insert in Regulation (EEC) No
 context of the general scheme of another Member State,            1408/71 a provision permitting, in certain cases, two or
 even in the case where these periods have already been            more Member States to conclude a contract aimed at
 taken into consideration in the latter State in the context      restricting the overlapping of benefits of the same kind;
 of a special scheme;                                             that these agreements should be mentioned in Annex IV,
                                                                  D;
 Whereas, for reasons of simplicity and clarity, it is            Whereas it is necessary to insert a provision in Regu-
 necessary to insert a provision in Article 45 of Regu-           lation (EEC) No 1408/71 stipulating that in the case of
 lation (EEC) No 1408/71 providing for the inclusion in           overlapping of benefits of the same kind, the provisions
 Annex VI of all specific provisions which determine the          governing reduction, suspension or withdrawal provided
 methods of assimilation of certain insurance conditions          for by the legislation of a Member State shall not be
 for the acquisition, retention or recovery of the right to       applicable to a benefit calculated in accordance with the
 benefits taking account of the particular characteristics        method used for aggregation and apportionment;
 of the national legislations concerned;
                                                                  Whereas, in accordance with the case law of the Court
Whereas in accordance with the constant case law of the           of Justice, it is necessary that the overlapping of benefits
 Court of Justice, the Council is not deemed competent            of the same kind within the meaning of Chapter 3 of
to enact rules imposing a restriction on the overlapping          Title III of Regulation (EEC) No 1408/71 be taken to
of two or more pensions acquired in different Member              mean the overlapping of invalidity benefits, old-age
States by a reduction of the amount of a pension                  benefits and survivors' benefits calculated or awarded on
acquired solely under the national legislation; that,             the basis of periods of insurance and/or of residence
according to the Court of Justice, it is for the national         completed by one and the same person and that over-
legislator to enact such rules, bearing in mind that it is        lapping of a different kind be taken to mean overlapping
for the Community legislator to fix the limits within             of benefits other than those of the same kind;
which the national provisions concerning the reduction,
suspension or withdrawal shall be applied; that provision        Whereas it is necessary that a provision be inserted in
be made for the purpose of determining the amount of a            Regulation (EEC) No 1408/71 guaranteeing that the
pension calculated in accordance with the methods used           joint application of national provisions concerning
for aggregation and apportionment and guaranteed by              reduction, suspension or withdrawal by two or more
Community law where the application of national legis-            Member States in the case of overlapping of benefits of a
lation, including provisions governing reduction,                different kind does not have any adverse effect on
suspension or withdrawal, is less favourable than the            migrant workers or their dependants; that it is necessary
aforesaid method; that furthermore it must be made               to include a provision in Regulation (EEC) N o 1408/71
possible for the competent institutions to waive a calcu-        for the purpose of avoiding a situation in which, under
lation in accordance with the method for aggregation             the legislation of a Member State, a pension is
 ---pagebreak--- No C 206/4                             Official Journal of the European Communities                                 11. 8. 89
withdrawn or suspended in full because the person in             of assimilation of certain insurance conditions for the
question is in receipt of a lower benefit of a different          acquisition, retention or recovery of the right to benefits
kind from another Member State; that the same reasons,           referred to in Article 45 of the Regulation for Spain,
which justify the abovementioned provisions, also justify         France and the Netherlands;
the cases where, under the legislation of a Member State,
a pension cannot be awarded in the case where the                Whereas it is necessary to include a provision in heading
beneficiary is in receipt of a benefit of a different kind;       D, Spain, of Annex VI of Regulation (EEC) No
                                                                  1408/71 for the purpose of specifying the methods of
Whereas the text of paragraph 1 of Article 48 of Regu-            applying Article 47 of the Regulation for Spain;
lation (EEC) No 1408/71 should be clarified by speci-
fying the conditions of application of this paragraph;
                                                                 Whereas it is necessary, with a view to the particular
Whereas it is necessary to fill a loophole in the text of         nature of Greek legislation, to insert a provision in
the first sentence of Article 49 (1) of Regulation (EEC)         Annex VI, heading F, Greece, for the purpose of
No 1408/71 by inserting a reference to Article 40 (3) of          avoiding a situation in which the application of Article
the Regulation; that it is necessary to amplify the two           49 (2) of the Regulation could have unfavourable conse-
first paragraphs of Article 49 of Regulation (EEC) No            quences for employed persons who had been insured in
1408/71 so that they can be applied in the cases referred         Greece;
to in the second sentence of paragraph 2 of Article 44 of
the Regulation;                                                  Whereas, as a consequence of an amendment to
                                                                  Netherlands legislation, point 4 of heading J, the
Whereas the amendment to paragraph 2 of Article 12               Netherlands, of Annex VI of Regulation (EEC) No
calls for the insertion of a new subparagraph (d) in              1408/71 should be adapted;
Article 60 (1) of Regulation (EEC) No 1408/71;
Whereas it is necessary to insert in Regulation (EEC) No         Whereas it    is necessary to amend the text of Article 15
1408/71 the transitory provisions for the application of          (1) and of   Articles 35, 39, 46, 47, 48, 49 and 107 of
this Regulation;                                                 Regulation    (EEC) No 574/72 for the purpose of taking
                                                                  account of   amendments made by this Regulation;
Whereas the insertion of parts B, C and D in Annex IV
of Regulation (EEC) No 1408/71 means that the present            Whereas the provisions provided for by Article 7 (1) (b)
Annex IV becomes Annex IV part A;                                 and (c) of Regulation (EEC) N o 574/72 should be
                                                                 deleted as they have become superfluous in relation to
Whereas it is necessary to delete from Annex VI of               new Articles 46 and 46c of Regulation (EEC) No
Regulation (EEC) No 1408/71 the provisions appearing              1408/71;
at present in heading B, Denmark, point 7, heading G,
Ireland, point 4 and heading L, United Kingdom, point
9 which have been rendered superfluous by the inclusion          Whereas it is necessary to amend paragraph 1 of Article
of the concept of benefits of the same kind within the            7 of Regulation (EEC) No 574/72 by including a limit
meaning of Chapter 3 of Title III of the Regulation;             to the application of rules against overlapping, in
                                                                 particular in the case of mutual reduction, suspension or
Whereas it would be pointless to impose on the                   withdrawal of two or more benefits;
competent Danish institution the application of the
provisions of Regulations (EEC) No 1408/71 and (EEC)             Whereas it is necessary to insert in paragraph 2 of Article
No 574/72, which protect migrant workers and their                7 of Regulation (EEC) No 574/72 a reference to new
dependants against adverse effects of the joint                  Article 46a, 46b and 46c of Regulation (EEC) N o
application    of    provisions   concerning      reduction,      1408/71,
suspension or withdrawal by two or more Member States
in the case of overlapping of benefits of a different kind
since a guarantee of this kind is already provided for in        HAS ADOPTED THIS REGULATION:
Danish legislation;
Whereas, in view of the particular nature of Danish                                         Article 1
legislation as regards pensions, it is necessary to include
                                                                 The preambles to Regulation (EEC) No 1408/71 shall
a provision in heading D, Denmark, of Annex VI of
                                                                 be amended as follows:
Regulation (EEC) No 1408/71 designed to extend, for
the purpose of the application of Danish legislation, the
concept of benefits of the same kind within the meaning           1. The seventh preamble shall be replaced by the
of Chapter 3 of Title III of the Regulation;                         following:
Whereas it is necessary to include in Annex VI of Regu-              'Whereas the provisions for coordination adopted for
lation (EEC) No 1408/71 provisions in heading D,                     the implementation of Article 51 of the Treaty must
Spain, heading E, France, and heading J, the                         guarantee to workers who move within the
Netherlands, for the purpose of specifying the methods               Community their accrued rights and advantages;'
 ---pagebreak--- 11. 8. 89                                   Official Journal of the European Communities                            No C 206/5
2. The eighth preamble shall be deleted.                                  scheme within the meaning of paragraphs 2 or 3,
                                                                          subject to the completion of periods of insurance or
                                                                          of residence, the competent institutions of that
                              Article 2
                                                                          Member State shall take account, where necessary, of
Regulation (EEC) No 1408/71 shall be amended as                           the periods of insurance or of residence completed
follows:                                                                  under the legislation of any other Member State, be it
                                                                          under a general scheme or under a special scheme and
1. Article 12 (2) shall be replaced by the following:                     either as an employed person or as a self-employed
                                                                          person. For that purpose, it shall take account of
     '2.    Save as otherwise provided in this Regulation,                these periods as if they had been completed under its
     the provisions of the legislation of a Member State                  own legislation.
     governing the reduction, suspension or withdrawal of
     benefits in cases of overlapping with other social
     security benefits or any other form of income may be
    invoked even where the right to such benefits was                     2.    Where the legislation of a Member State makes
    acquired under the legislation of another Member                      the granting of certain benefits conditional upon the
     State or where such income is acquired in the                       periods of insurance having been completed only in
    territory of another Member State.'                                   an occupation which is subject to a special scheme for
                                                                          employed persons or, where appropriate, in a specific
                                                                         employment, periods completed under the legislations
2. Chapter 2 of Title III shall be replaced by the                       of other Member States shall be taken into account
    following:                                                           for the granting of these benefits only if completed
                                                                         under a corresponding scheme or, failing this, in the
                             'CHAPTER 2                                  same occupation or, where appropriate, in the same
                                                                         employment.
                             INVALIDITY
                              Section 1
                                                                         If, account having been taken of the periods thus
    Employed persons or self-employed persons subject                    completed, the person concerned does not satisfy the
    only to legislations under which the amount of inval-                conditions for receipt of these benefits, these periods
    idity benefits is independent of the duration of periods             shall be taken into account for the granting of the
                             of insurance                                benefits under the general scheme or, failing this,
                                                                         under the scheme applicable to manual or clerical
                               Article 37                                workers, as appropriate, subject to the condition that
                                                                         the person concerned has been affiliated to one or
    General provisions                                                   other of these schemes, as appropriate.
    1.    An employed person or a self-employed person
   who has been successively or alternately subject to the
    legislations of two or more Member States and who                    3.    Where the legislation of a Member State makes
   has completed periods of insurance exclusively under                  the granting of certain benefits conditional upon the
   legislations according to which the amount of inva-                   periods of insurance having been completed only in
   lidity benefits is independent of the duration of                     an occupation subject to a special scheme for self-
   periods of insurance shall receive benefits in                        employed persons, periods completed under the legis-
   accordance with the provisions of Article 39. This                    lations of other Member States shall be taken into
   Article shall not affect pension increases or income                  account for the granting of these benefits only if
   support in respect of children, granted in accordance                completed under a corresponding scheme or, failing
   with the provisions of Chapter 8.                                    this, in the same occupation. The special schemes for
                                                                        self-employed persons referred to in this paragraph
   2.     Annex IV-A lists legislations of the kind                     are listed in Annex IV-B for each Member State
   mentioned in paragraph 1 which are in force in the                   concerned.
   territory of each of the Member States concerned.
                              Article 38                                If, account having been taken of the periods thus
   Taking account of periods of insurance or of residence               completed, the person concerned does not satisfy the
   completed under the legislations to which an employed                conditions for receipt of these benefits, these periods
   person or a self-employed person was subject for the                 shall be taken into account for the granting of the
   acquisition, retention or recovery of the right to benefits          benefits under the general scheme or, failing this,
                                                                        under the scheme applicable to manual or clerical
   1.     Where the legislation of a Member State makes                 workers, as appropriate, subject to the condition that
   the acquisition, retention or recovery of the right to               the person concerned has been affiliated to one or
   benefits, under a scheme which is not a special                      other of these schemes, as appropriate.
 ---pagebreak--- No C 206/6                              Official Journal of the European Communities                                  11. 8. 89
                            Article 39                                                         Article 40
  Award of benefits                                                  General provisions
  1.     The institution of a Member State, whose legis-             1.    An employed person or a self-employed person
  lation was applicable at the time when incapacity for              who has been successively or alternately subject to the
  work followed by invalidity occurred, shall determine,             legislations of two or more Member States, of which
  in accordance with that legislation, whether the per-              at least one is not of the type referred to in Article 37
  son concerned satisfies the conditions for entitlement             (1), shall receive benefits under the provisions of
  to benefits, taking account, where appropriate, of the             Chapter 3, which shall apply, mutatis mutandis, taking
  provisions of Article 38.                                          into account the provisions of paragraph 4.
  2.     A person who satisfies the conditions referred to           2.     However, an employed or self-employed person
  in paragraph 1 shall receive the benefits only from the            who suffers incapacity for work followed by invalidity
  said institution, in accordance with the provisions of             while subject to a legislation listed in Annex IV-A
  the legislation which it administers.                              shall receive benefits in accordance with the
                                                                     provisions of Article 37 (1) on the following
                                                                     conditions:
  3.     A person who is not entitled to benefits under
  paragraph 1 shall receive the benefits to which he is
  still entitled under the legislation of another Member             — that he satisfies the conditions of that legislation
  State taking account, where appropriate, of the                        or other legislations of the same type, taking
  provisions of Article 38.                                              account where appropriate of the provisions of
                                                                         Article 38, but without having recourse to periods
                                                                         of insurance completed under legislations not
  4.     If the legislation referred to in paragraphs 2 or 3             listed in Annex IV-A, and
  provides that the amount of the benefits shall be
  determined taking into account the existence of                    — that he does not satisfay the conditions required
  members of the family (other than the children), the                   for the acquirement of the right to invalidity
  competent       institution     shall   also    take   into            benefits under a legislation not listed in Annex
  consideration those members of the family of the                       IV-A, and
  person concerned who are residing in the territory of
  another Member State, as if they were residing in the
  territory of the competent State.                                  — that he does not assert any claims to old-age
                                                                         benefits, account being taken of the provisions of
                                                                         the second sentence of Article 44 (2).
  5.     If the legislation referred to in paragraph 2 or 3
  lays down provisions for the reduction, suspension or
  withdrawal of benefits in the case of overlapping with             3. (a) For the purpose of determining the right to
  other income or with benefits of a different kind                          benefits under the legislation of a Member
  within the meaning of Article 46a (2), Article 46a (3)                      State, listed in Annex IV-A, which makes the
  and Article 46c (5) shall apply mutatis mutandis.                           granting of invalidity benefits conditional upon
                                                                              the person concerned having received cash
                                                                              sickness benefits or having been incapable of
  6.     A wholly unemployed employee to whom the                            work during a specified period, where an
  provisions of Article 71 (1) (a) (ii) or of the first                       employed person or a self-employed person
  sentence of Article 71 (1) (b) (ii) apply shall receive                    who has been subject to that legislation suffers
  the invalidity benefits provided by the competent                           incapacity for work followed by invalidity
  institution of the Member State on whose territory he                      while subject to the legislation of another
  resides, in accordance with the legislation which it                        Member State, account shall be taken of the
  administers, as though he had been subject to that                          following, without prejudice to Article 37 (1):
  legislation during his last employment, account being                        (i) any period during which, in respect of that
  taken, where appropriate, of the provisions of Article                           incapacity for work, he has, under the
  38 and/or Article 25 (2). The institution of the                                 legislation of the second Member State,
  country of residence shall be responsible for paying                             received cash sickness benefits or, in lieu
  these benefits.                                                                  thereof, continued to receive a wage or
                                                                                   salary,
                            Section 2                                         (ii) any period during which, in respect of the
                                                                                   invalidity which followed that incapacity
  Employed persons or self-employed persons subject                                for work, he has received benefits within
  either only to legislations under which the amount of                            the meaning of Chapters 2 and 3 of Title
  invalidity benefit depends on the duration of periods                            III of the Regulation granted in respect of
  of insurance or residence or to legislations of this type                        invalidity under the legislation of the
            and of the type referred to in Section 1                               second Member State,
 ---pagebreak--- 11. 8. 89                                 Official Journal of the European Communities                                   No C 206/7
            as if it were a period during which cash                    (c) if the total amount of the benefit or benefits
            sickness benefits were paid to him under the                     payable under the provisions of subparagraph (b)
            legislation of the first Member State or during                  is lower than the amount of the benefit which the
            which he was incapable of working within the                     person concerned was receiving at the expense of
            meaning of that legislation.                                     the institution previously liable for payment, such
                                                                             institution shall pay him an income support equal
                                                                             to the difference between the two amounts;
      (b) The right to invalidity benefits under the legis-             (d) if, in the case referred to in subparagraph (b), the
            lation of the first Member State shall be                        institution responsible for the initial incapacity is a
            acquired either upon expiry of the preliminary                   Netherlands institution, and if:
            period of compensation for sickness as                             (i) the illness which caused the aggravation is
            required by that legislation or upon expiry of                         the same as the one which gave rise to the
            the preliminary period of incapacity for work                          granting of benefits under Netherlands legis-
            as required by that legislation, but not before:                       lation;
             (i) the date of acquisition of the right to inva-                (ii) this illness is an occupational disease within
                 lidity benefits referred to in paragraph (a)                      the meaning of the legislation of the Member
                 (ii) under the legislation of the second                          State to which the person concerned was last
                 Member State; or                                                  subject and entitles him to payment of the
            (ii) the day following the last day on which                           income support referred to in Article 60 (1)
                 the person concerned is entitled to cash                          (b); and
                 sickness benefits under the legislation of                 (iii) the legislation or legislations to which the
                 the the second Member State.                                      person concerned has been subject since
                                                                                   receiving benefits is or are listed in Annex
                                                                                   IV-A,
   4.    A decision taken by an institution of a Member                     the Netherlands institution shall continue to
   State concerning the degree of invalidity of a claimant                  provide the initial benefit after the aggravation
  shall be binding on the institution of any other                          occurs, and the benefit due under the legislation
  Member State concerned, provided that the                                 of the last Member State to which the person
  concordance between the legislations of these States                      concerned was subject shall be reduced by the
  on conditions relating to the degree of invalidity is                     amount of the Netherlands benefit;
  acknowledged in Annex V.                                             (e) if, in the case referred to in subparagraph (b), the
                                                                            person concerned is not entitled to benefits at the
                                                                            expense of an institution of another Member
                                                                            State, the competent institution of the first State
                            Section 3                                       shall grant the benefits, according to the
                                                                            provisions of the legislation of that State, taking
                     Aggravation of invalidity                              into account the aggravation and, where appro-
                                                                            priate, the provisions of Article 38.
                                                                       2.      In the case of aggravation of an invalidity for
                             Article 41                               which an employed person or a self-employed person
                                                                       is receiving benefits under the legislation of two or
   1.    In the case of aggravation of an invalidity for               more Member States, the benefits shall be granted to
  which an employed person or a self-employed person                   him, taking the aggravation into account, in
  is receiving benefits under the legislation of a single              accordance with the provisions of Article 40 (1).
  Member State, the following provisions shall apply:
                                                                                                 Section 4
                                                                      Resumption of provision of benefits after suspension
  (a) if the person concerned has not been subject to
       the legislation of another Member State since                  or withdrawal — Conversion of invalidity benefits into
       receiving benefits, the competent institution of the           old-age benefits — Recalculation of benefits granted
       first State shall grant the benefits, taking the                                       under Article 39
       aggravation into account, in accordance with the                                           Article 42
       provisions of the legislation which it administers;
                                                                      Determination of the institution responsible for the provision
                                                                      of benefits where provision of invalidity benefits is resumed
  (b) if the person concerned has been subject to the                 1.      If provision of benefits is to be resumed after
       legislation of one or more of the other Member                 suspension, such provision shall, without prejudice to
       States since receiving benefits, the benefits shall be         the provisions of Article 43, be the responsibility of
       granted to him, taking the aggravation into                    the institution or institutions which were responsible
       account, in accordance with the provisions of                  for provision of the benefits at the time of their
      Article 37 (1) or 40 (1) or (2), as appropriate;                suspension.
 ---pagebreak--- No C 206/8                               Official Journal of the European Communities                                       11. 8. 89
   2.    If, after withdrawal of benefits, the condition of        3. Chapter 3 of Title III shall be replaced by the
   the person concerned warrants the granting of further               following text:
   benefits, they shall be granted in accordance with the
   provisions of Article 37 (1) or 40 (1) or (2), as appro-
   priate.                                                                                      'CHAPTER 3
                                                                                  OLD AGE AND DEATH (PENSIONS)
                             Article 43
                                                                                                  Article 44
   Conversion of invalidity benefits into old-age benefits —
   Recalculation of benefits granted under Article 39                  General provisions for the award of benefits where an
                                                                       employed or self-employed person has been subject to the
                                                                       legislation of two or more Member States
   1.    Invalidity benefits shall be converted into
  old-age benefits, where appropriate, under the
                                                                       1.     The rights to benefits of an employed or self-
  conditions laid down by the legislation or legislations
                                                                       employed person who has been subject to the legis-
  under which they were granted, and in accordance
                                                                       lation of two or more Member States, or of his
  with the provisions of Chapter 3.
                                                                       survivors, shall be determined in accordance with the
                                                                      provisions of this chapter.
  2.     Where a person receiving invalidity benefits can
  establish a claim to old-age benefits under the legis-              2.      Save as otherwise provided in Article 49, the
  lation of one or more Member States, in accordance                  processing of a claim for an award submitted by the
  with the provisions of Article 49, any institution                  person concerned shall have regard to all the legis-
  which is responsible for providing invalidity benefits              lations to which the employed or self-employed
  under the legislation of a Member State shall continue              person has been subject. Exception shall be made to
  to provide such person with the invalidity benefits to              this rule if the person concerned expressly asks for
  which he is entitled under the legislation which it                 postponement of the award of old-age benefits to
  administers until the provisions of paragraph 1                     which he would be entitled under the legislation of
  become applicable as regards that institution or so                 one or more Member States.
  long as the person concerned fulfils the qualifying
  conditions for such benefits.
                                                                      3.      This chapter shall not apply to increases in
                                                                      pensions or to income supports for pensions in respect
                                                                      of children or to orphans' pensions granted in
  3.    Where invalidity benefits granted in accordance               accordance with the provisions of Chapter 8.
  with the provisions of Article 39 under the legislation
  of a Member State are converted into old-age benefits
  and where the person concerned does not yet satisfy
  the conditions required by one or more national legis-                                         Article 45
  lations to receive these benefits, the person concerned
  shall receive from this or these Member States, from                Consideration of periods of insurance or of residence
  the date of the conversion, invalidity benefits granted             completed under the legislations to which an employed
  in accordance with the provisions of Chapter 3 as if                person or a self-employed person was subject, for the
 this Chapter had been applicable at the time when his                acquisition, retention or recovery of the right to benefits.
  incapacity for work leading to invalidity occurred,
 until the person concerned satisfies the qualifying
 conditions for old-age benefit laid down by the                      1.     Where the legislation of a Member State makes
 national legislation or legislations concerned or,                   the acquisition, retention or recovery of the right to
 where such conversion is not provided for, as long as                benefits, under a scheme which is not a special
 he has a right to invalidity benefits under the legis-               scheme within the meaning of paragraphs 2 or 3,
 lation or legislations concerned.                                    subject to the completion of periods of insurance or
                                                                      of residence, the competent institution of that
                                                                      Member State shall take account, where necessary, of
                                                                      the periods of insurance or of residence completed
 4.     The invalidity benefits provided under Article 39             under the legislation of any other Member State, be it
 shall be recalculated as soon as the beneficiary                     under a general scheme or under a special scheme and
 satisfies the qualifying conditions for invalidity                   either as an employed person or as a self-employed
 benefits laid down by a legislation not listed in Annex              person. For that purpose, it shall take account of
 IV-A or as soon as he receives old-age benefits under                these periods as if they had been completed under its
 the legislation of another Member State.'                            own legislation.
 ---pagebreak--- 11. 8. 89                             Official Journal of the European Communities                               No C 206/9
   2.    Where the legislation of a Member State makes                                       Article 46
   the granting of certain benefits conditional upon the
   periods of insurance having been completed only in              Award of benefits
   an occupation which is subject to a special scheme for          1.     Where the conditions required by the legislation
   employed persons or, where appropriate, in a specific           of a Member State for entitlement to benefits have
   employment, periods completed under the legislations            been satisfied without having to apply the provisions
   of other Member States shall be taken into account              of Article 45 or of Article 40 (3), the following rules
   for the granting of these benefits only if completed            shall apply:
   under a corresponding scheme or, failing this, in the           (a) the competent institution shall calculate the
   same occupation or, where appropriate, in the same                   amount of the benefit that would be due:
   employment. If, account having been taken of the                      (i) on the one hand, only under the provisions of
   periods thus completed, the person concerned does                         the legislation which it administers;
   not satisfy the conditions for receipt of these benefits,
                                                                        (ii) on the other hand, in application of the
   these periods shall be taken into account for the                         provisions of paragraph 2;
   granting of the benefits under the general scheme or,
                                                                   (b) the competent institution may, however, waive the
   failing this, under the scheme applicable to manual or
                                                                        calculation to be carried out in accordance with
   clerical workers, as appropriate, subject to the                     the provisions of (a) (ii) if the result of this calcu-
   condition that the person has been affiliated to one or              lation, apart from differences arising from the use
   other of these schemes, as appropriate.                              of round figures, is equal to or lower than the
                                                                        result of the calculation carried out in accordance
   3.    Where the legislation of a Member State makes                  with the provisions of (a) (i), in so far as this
   the granting of certain benefits conditional upon the                institution does not apply any legislation
   periods of insurance having been completed only in                   containing rules against overlapping as referred to
   an occupation subject to a special scheme for self-                  in Articles 46b and 46c or if the aforementioned
   employed persons, periods completed under the legis-                 institution applies a legislation containing rules
   lations of other Member States shall be taken into                   against overlapping in the case referred to in
                                                                        Article 46c provided that the said legislation lays
   account for the granting of these benefits only if
                                                                        down that benefits of a different kind shall be
   completed under a corresponding scheme or, failing
                                                                        taken into consideration only in proportion to the
   this, in the same occupation. The special schemes for                periods of insurance or of residence completed
   self-employed persons referred to in this paragraph                  only under this legislation.
   are listed in Annex IV-B. If, account having been
                                                                        In Section C of Annex IV mention is made for
   taken of the periods thus completed, the person
                                                                        each Member State concerned of the case where
   concerned does not satisfy the conditions for receipt
                                                                        the two calculations could lead to a result of this
   of these benefits, these periods shall be taken into                 kind.
   account for the granting of the benefits under the
   general scheme or, failing this, under the scheme               2.     Where the conditions required by the legislation
   applicable to manual or clerical workers, as appro-             of a Member State for entitlement to benefits are
   priate, subject to the condition that the person                satisfied only after application of the provisions of
   concerned has been affiliated to one or other of these          Article 45 and/or of those of Article 40 (3), the
   schemes, as appropriate.                                        following rules shall apply:
                                                                   (a) the competent institution calculates the theoretical
                                                                        amount of the benefit to which the person
   4.    The periods of insurance completed under a                     concerned can lay claim provided all periods of
   special scheme of a Member State shall be taken into                 insurance and/or of residence, which have been
   account under the general scheme or, failing this,                   completed under the legislation of the Member
   under the scheme applicable to manual or clerical                    States to which the employed person or self-
   workers, as appropriate, of another Member State for                 employed person was subject, have been
   the acquisition, retention or recovery of the right to               completed in the State in question under the legis-
   benefits, subject to the condition that the person                   lation which it administers on the date of the
   concerned has been affiliated to one or other of these               award of the benefit. If, under this legislation, the
   schemes, even if these periods have already been                     amount of the benefit is independent of the
   taken into account in the latter State under a scheme                duration of the periods completed, the amount
   referred to in paragraph 2 or in the first sentence of               shall be regarded as being the theoretical amount
   paragraph 3.                                                         referred to in this paragraph;
                                                                   (b) the competent institution subsequently determines
                                                                       - the actual amount of the benefit on the basis of
   5.    Where the legislation of a Member State makes                  the theoretical amount referred to in the
   the acquisition, retention or recovery of the right to               preceding paragraph in accordance with the ratio
   benefits conditional upon the person concerned being                 of the duration of the periods of insurance or of
   insured at the time of the realization of the risk, this             residence completed before the realization of the
   condition shall be regarded as having been satisfied in              risk under the legislation which it administers to
   the case of insurance under the legislation of another               the total duration of the periods of insurance and
   Member State, in accordance with the procedures                      of residence completed before the realization of
   provided for in Annex VI for each Member State                       the risk under the legislation of all the Member
   concerned.                                                           States concerned.
 ---pagebreak--- No C 206/10                               Official Journal of the European Communities                                      11. 8. 89
  3.    The person concerned is entitled to the highest                (c) no account shall be taken of the amount of
  amount calculated in accordance with the provisions                      benefits acquired under the legislation of another
  of paragraphs 1 and 2 from the competent institution                     Member State which are awarded on the basis of
  of each Member State without prejudice to any                            voluntary insurance or continued optional
  application of the provisions concerning reduction,                      insurance.
  suspension or withdrawal provided for by the legis-
  lations under which this benefit is due. Where this is
  the case, the comparison to be carried out relates to                                          Article 46b
  the amounts determined after the application of the
                                                                       Special provisions applicable in the case of overlapping of
  said provisions.                                                     benefits of the same kind under the legislation of two or
                                                                       more Member States
  4.    When in a case of invalidity, old-age or
  survivors' pensions, the total of the benefits due from              1.     The provisions on reduction, suspension or with-
  the competent institutions of two or more Member                     drawal laid down by the legislation of a Member
  States, under the provisions of a multilateral social                State shall not be applicable to a benefit calculated in
  security convention referred to in Article 6 (b), is                 accordance with the provisions of Article 46 (2).
  lower than the total which would be due from such
  Member States under paragraphs 1 to 3, the person                    2.     The provisions on reduction, suspension or with-
  concerned shall benefit from the provisions of this                  drawal laid down by the legislation of a Member
  chapter.                                                             State shall apply to a benefit calculated in accordance
                                                                       with the provisions of Article 46 (1) (a) (i) only if the
                                                                       benefit concerned is:
                           Article 46a
                                                                       (a) either a benefit, which is referred to in Section D
  General provisions relating to reduction, suspension or with-            of Annex IV, the amount of which does not
  drawal applicable to benefits in respect of invalidity, old age          depend on the length of the periods of insurance
  or survivors under the legislations of the Member States.
                                                                           or of residence completed; or
   1.    For the purposes of this chapter, overlapping of              (b) a benefit, the amount of which is calculated on
  benefits of the same kind shall have the following                       the basis of a credited period deemed to have
  meaning: all overlapping of benefits in respect of                       been completed between the day on which the
  invalidity, old age and survivors calculated or                          risk materialized and a later date. In the latter
  provided on the basis of periods of insurance and/or                     case, the said provisions shall apply in the case of
  residence completed by one and the same person.                          overlapping of such a benefit:
                                                                             (i) either with a benefit of the same kind, except
                                                                                 where an agreement has been concluded
  2.     For the purposes of this chapter, overlapping of                        between two or more Member States
  benefits of different kinds means all overlapping of                           providing that one and the same credited
  benefits that cannot be regarded as being of the same                          period may not be taken into account two or
  kind within the meaning of paragraph 1.                                        more times;
                                                                            (ii) or with a benefit of the type referred to in (a).
  3.     The following rules shall be applicable for the
  application of provisions on reduction, suspension or                The benefits and agreements referred to in (b) are
  withdrawal laid down by the legislation of a Member                  mentioned in Section D of Annex IV.
  State in the case of overlapping of a benefit in respect
  of invalidity, old age or survivors with a benefit of the                                      Article 46c
  same kind or a benefit of a different kind or with
  other income:                                                        Special provisions applicable in the case of overlapping of one
                                                                       or more benefits referred to in Article 46a (1) with one or
                                                                       more benefits of a different kind or with other income, where
  (a) account shall be taken of the benefits acquired                  two or more Member States are concerned
       under the legislation of another Member State or
       of other income acquired in another Member
       State only where the legislation of the first                    1.    If the receipt of benefits of a different kind or
       Member State provides for the taking into                       other income entails the reduction, suspension or
       account of benefits or income acquired abroad;                  withdrawal of two or more benefits referred to in
                                                                       Article 46 (1) (a) (i), the amounts, which would not be
                                                                       paid in strict application of the provisions concerning
  (b) account shall be taken of the amount of benefits                 reduction, suspension or withdrawal provided for by
       to be granted by another Member State before                    the legislation of the Member States concerned, shall
       reduction of taxes, social security contributions               be divided by the number of benefits subject to
       and other individual levies or deductions;                      reduction, suspension or withdrawal.
 ---pagebreak--- 11. 8. 89                               Official Journal of the European Communities                                 No C 206/11
   2.    Where the benefit in question is calculated in                                         Article 47
   accordance with Article 46 (2), the benefit or benefits
   of a different kind from other Member States or other              Additional provisions for the calculation of benefits
   income and all other elements provided for by the
   legislation of the Member State for the application of
   the provisions in respect of reduction, suspension or              1.     For the calculation of the theoretical and pro
   withdrawal shall be taken into account in proportion               rata amounts referred to in Article 46 (2), the
   to the periods of insurance referred to in Article                 following rules shall apply:
   46 (2) (b), and shall be used for the calculation of the
   said benefit.                                                      (a) where the total length of the periods of insurance
                                                                            and of residence completed before the risk
                                                                            materialized under the legislations of all the
   3.    If the receipt of benefits of a different kind or of               Member States concerned is longer than the
   other income entails the reduction, suspension or                        maximum period required by the legislation of
   withdrawal of one or more benefits referred to in                       one of these States for receipt of full benefit, the
   Article 46 (1) (a) (i), and of one or more benefits                     competent institution of that State shall take into
   referred to in Article 46 (2), the following rules shall                consideration this maximum period instead of the
   apply:                                                                  total length of the periods completed. This
                                                                           method of calculation must not result in the
                                                                           imposition on that institution of the cost of a
   (a) where it is a case of a benefit or benefits referred                benefit greater than the full benefit provided for
       to in Article 46 (1) (a) (i), the amounts which                     by the legislation which it administers; this
       would not be paid in strict application of the                      provision shall not apply to benefits, the amount
       provisions concerning reduction, suspension or                      of which does not depend on the length of
       withdrawal provided for by the legislation of the                   insurance;
       Member States concerned, shall be divided by the
       number of benefits subject to reduction,
                                                                     (b) the procedure for taking account of overlapping
       suspension or withdrawal;
                                                                           periods is laid down in the Implementing Regu-
                                                                           lation referred to in Article 98;
   (b) where it is a case of a benefit or benefits
       calculated in accordance with Article 46 (2), the             (c) where, under the legislation of a Member State,
       reduction, suspension or withdrawal shall be                        benefits are calculated on the basis of average
       carried out in accordance with paragraph 2.                         earnings, an average contribution, an average
                                                                           increase or on the ratio which existed, during the
                                                                          periods of insurance, between the claimant's gross
                                                                          earnings and the average gross earnings of all
  4.     Where, in the case referred to in paragraph 1
                                                                          insured periods other than apprentices, such
  and 3 (a), the legislation of a Member State provides
                                                                          average figures or ratios shall be determined by
  that, for the application of provisions concerning
                                                                          the competent institution of that State solely on
  reduction, suspension or withdrawal, account shall be
                                                                          the basis of the periods of insurance completed
  taken of benefits of a different kind and/or other
                                                                          under the legislation of the said State, or the
  income and all other elements in proportion to the
                                                                          gross earnings received by the person concerned
  periods of insurance referred to in Article 46 (2) (b),
                                                                          during those periods only;
  the division provided for in the said paragraphs shall
  not apply in respect of that Member State.
                                                                     (d) where, under the legislation of a Member State,
                                                                          benefits are calculated on the basis of the amount
  5.    Where the legislation of a Member State makes                     of earnings, contributions or increases, the
  provision for the full withdrawal or suspension of a                    competent institution of that State shall determine
  benefit on the grounds that the person concerned                        the earnings, contributions and increases to be
  receives a benefit of a different kind under the legis-                 taken into account in respect of the periods of
  lation of another Member State, the first benefit may                   insurance or residence completed under the legis-
  be reduced only by an amount not in excess of the                       lation of other Member States on the basis of the
  benefit due from the second Member State.                               average earnings, contributions or increases
                                                                          recorded in respect of the periods of insurance
                                                                          completed under the legislation which it admin-
                                                                          isters;
  6.    All the abovementioned provisions shall apply,
  mutatis mutandis, where the legislation of one or more
  Member States provides that the right to a benefit                (e) where, under the legislation of a Member State,
  cannot be acquired in the case where the person                         benefits are calculated on the basis of standard
  concerned is in receipt of a benefit of a different kind                earnings or a fixed amount, the competent
  or of other income.                                                     institution of that State shall consider the
 ---pagebreak--- No C 206/12                               Official Journal of the European Communities                                     11. 8. 89
       standard earnings or the fixed amount to be taken                to award benefits in respect of periods completed
       into account by it in respect of periods of                      under the legislation it administers, which are taken
       insurance or residence completed under the legis-                into account when the risk materializes, if:
       lations of other Member States as being equal to
       the standard earnings or fixed amount or, where                 — the duration of the said periods does not amount
       appropriate, to the average of the standard                          to one year, and
       earnings or the fixed amount corresponding to
                                                                       — if under that legislation no right to benefit is
       the periods of insurance completed under its own
                                                                            acquired by virtue only of the provisions of that
       legislation;
                                                                            legislation.
   (f) where, under the legislation of a Member State,
       benefits are calculated for some periods on the                 2.     The competent institution of each of the
       basis of the amount of earnings, and, for other                 Member States concerned shall take into account the
       periods, on the basis of standard earnings or a                 periods referred to in paragraph 1, for the purposes of
       fixed amount, the competent institution of that                 applying the provisions of Article 46 (2) excepting
       State shall, in respect of periods of insurance or              those of subparagraph (b).
       residence completed under the legislations of
       other Member States, take into account the                      3.     If the effect of applying the provisions of
       earnings or fixed amounts determined in                         paragraph 1 would be to relieve all the institutions of
       accordance with the provisions referred to in (d)               the Member States concerned of their obligations,
       or (e) or, as appropriate, the average of these                 benefits shall be awarded exclusively under the legis-
       earnings or fixed amounts, where benefits are                   lation of the last of those States whose conditions are
       calculated on the basis of standard earnings or a               satisfied, as if all the periods of insurance and
       fixed amount for all the periods completed under                residence completed and taken into account in
       the legislation which it administers, the competent             accordance with the provisions of Article 45 (1) to (4)
       institution shall consider the earnings to be taken             had been completed under the legislation of that
       into account in respect of the periods of insurance             State.
       or residence completed under the legislations of
       other Member States as being equal to the
                                                                                                Article 49
       notional earnings corresponding to the standard
       earnings or fixed amount;                                       Calculation of benefits where the person concerned does not
                                                                       simultaneously satisfy the conditions laid down by all the
  (g) where, under the legislation of a Member State,                  legislations under which periods of insurance or of residence
       benefits are calculated on the basis of average                 have been completed or when he has expressly requested a
       contributions, the competent institution shall                  postponement of the award of old-age benefits
       determine that average exclusively by reference to
       those periods of insurance completed under the                  1.     If, at a given time, the person concerned does
       legislation of the said State.                                  not satisfy the conditions laid down for the provision
                                                                       of benefits by all the legislations of the Member States
  2.     The provisions of the legislation of a Member                 to which he has been subject, taking into account
  State concerning the revalorization of the factors                   where appropriate the provisions of Article 45 and/or
  taken into account for the calculation of benefits shall             Article 40 (3), but satisfies the conditions of one or
  apply, as appropriate, to the factors to be taken into               more of them only, the following provision shall
  account by the competent institution of that State, in               apply:
  accordance with the provisions of paragraph 1, in
  respect of the periods of insurance or residence                     (a) each of the competent institutions administering a
  completed under the legislation of another Member                         legislation whose conditions are satisfied shall
  State.                                                                    calculate the amount of the benefit due, in
                                                                            accordance with the provisions of Article 46;
  3.     If, under the legislation of a Member State, the
  amount of benefits is determined taking into account                 (b) however:
  the existence of members of the family other than                          (i) if the person concerned satisfies the
  children, the competent institution of that State shall                        conditions of at least two legislations without
  also take into consideration those members of the                              having recourse to periods of insurance or
  family of the person concerned who are residing in                             residence completed under the legislations
  the territory of another Member State as if they were                          whose conditions are not satisfied, these
  residing in the territory of the competent State.                              periods shall not be taken into account for the
                                                                                 purposes of the provisions of Article 46 (2);
                            Article 48                                      (ii) if the person concerned satisfies the
                                                                                 conditions of only one legislation without
  Periods of insurance or of residence of less than one year                     having recourse to periods of insurance or
                                                                                 residence completed under the legislations
  1.     Notwithstanding the provisions of Article 46 (2),                       whose conditions are not satisfied, the
  the institution of a Member State shall not be bound                           amount of the benefit payable shall be
 ---pagebreak--- 11. 8. 89                                  Official Journal of the European Communities                            No C 206/13
             calculated in accordance with the provisions               amount, such percentage or amount must be applied
             only of that legislation whose conditions are              directly to the benefits determined under the
             satisfied, taking account of the periods                   provisions of Article 46, without the need for a
             completed under that legislation only.                     recalculation in accordance with the provisions of that
                                                                        Article.
   The provisions of this paragraph shall apply mutatis
    mutandis where the person concerned has expressly                   2.      On the other hand, if the method of determining
   requested the postponement of the award of old-age                   benefits or the rules for calculating benefits should be
   benefits, in accordance with the provisions of the                   altered, a recalculation shall be carried out in
   second sentence of Article 44 (2).                                   accordance with the provisions of Article 46.'
   2.    The benefit or benefits awarded under one or                4. The following new subparagraph (d) shall be added
   more of the legislations in question, in the case                    to Article 60 (1):
   referred to in paragraph 1, shall be recalculated auto-              'The provisions for reduction, suspension or
   matically in accordance with the provisions of Article               withdrawal laid down by the legislation of a Member
   46, as and when the conditions required by one or                    State shall not apply to persons receiving benefits
   more of the other legislations to which the person                   awarded by institutions of two Member States in
   concerned has been subject are satisfied, taking into                accordance with the provisions of subparagraph (b).'
   account, where appropriate, the provisions of Article
   45 and taking into account once again, where appro-
                                                                     5. The following Article shall be inserted:
   priate, the provisions of paragraph 1. This paragraph
   shall apply mutatis mutandis where a person requests                  Article 95a
   the award of old-age benefits acquired under the
   legislation of one or more Member States which had                   Transitional provisions for... application of Regulation
   until then been postponed in accordance with the                     (EEC) No . . .
   provisions of the second sentence of Article 44 (2).
                                                                        1.      Under Regulation (EEC) No . .., no right shall
                                                                        be acquired for a period prior to . . . (date of entry
   3.    A recalculation shall automatically be made in                 into force of the present regulation).
   accordance with the provisions of paragraph 1,
   without prejudice to the provisions of Article 40 (2),               2.     All insurance periods or periods of residence
   where the conditions required by one or more of the                  completed under the legislation of a Member State
   legislations concerned are no longer satisfied.                      before . . . (date of entry into force of the present
                                                                        regulation) shall be taken into consideration for the
                                                                        determination of rights to benefits under the
                             Article 50
                                                                        provisions of Regulation (EEC) No . . .
   Award of an income support where the total of benefits               3.      Subject to the provisions of paragraph 1, a right
   payable under the legislations of the various Member States
                                                                        shall be acquired under Regulation (EEC) No . . .
   does not amount to the minimum laid down by the legislation
   of the State in whose territory the recipient resides                even though relating to a contingency which
                                                                        materialized prior to . . . (date of entry into force of
                                                                        this regulation).
   A recipient of benefits to whom this chapter applies
   may not, in the State in whose territory he resides and              4.     The rights of a person to whom a pension was
   under whose legislation a benefit is payable to him, be              awarded prior to . . . (the date of entry into force of
   awarded a benefit which is less than the minimum                     this regulation) may, on the application of the person
   benefit fixed by that legislation for a period of                    concerned, be reviewed, taking into account the
   insurance or residence equal to all the periods of                   provisions of Regulation (EEC) No . . .
   insurance taken into account for the payment in
   accordance with the provisions of the preceding                      5.     If an application referred to in paragraph 4 is
   Articles. The competent institution of that State shall,             submitted within two years from . . . (the date of entry
   if necessary, pay him throughout the period of his                   into force of this regulation), the rights acquired
   residence on its territory an income support equal to                under Regulation (EEC) No . . . shall have effect
   the difference between the total of the benefits                     from that date, and the provisions of the legislation of
   payable under this chapter and the amount of the                     any Member State concerning the forfeiture or limi-
   minimum benefit.                                                     tation of rights may not be invoked against the
                                                                        persons concerned.
                             Article 51                                 6.     If the application referred to in paragraph 4 is
                                                                        submitted after the expiry of the two-year period after
   Revalorization and recalculation of benefits                         . . . (the date of entry into force of this regulation),
                                                                        rights which have not been forfeited or not barred by
   1.    If, by reason of an increase in the cost of living             limitation shall have effect from the date on which the
   or changes in the level of wages or salaries or other                application was submitted, except where more
   reasons for adjustment, the benefits of the States                   favourable provisions of the legislation of any
   concerned are altered by a fixed percentage or                       Member State apply.'
 ---pagebreak--- N o C 206/14                              Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s              11. 8. 89
           6. A n n e x I V shall be replaced by the following.
                                                                    'ANNEX      IV
                                 (Articles 37 (2), 38 (3), 45 (3), 46 (1) (b) and 46b (2) of the Regulation)
                                                                        A
               Legislations referred to in Article 37 (1) of the Regulation under which the amount .of invalidity benefits
                                            is independent of the length of periods of insurance
               A. BELGIUM
                   The legislation relating to the general invalidity scheme, to the special invalidity scheme for miners
                   and to the special scheme for sailors in the Merchant Navy and the legislation concerning insurance
                   against incapacity for work for self-employed persons
               B. DENMARK
                   None
               C. GERMANY
                   None
              D. SPAIN
                  Legislation relating to invalidity insurance under the general scheme and under the special schemes
              E. FRANCE
                   1. Employed persons
                      All legislations on invalidity insurance, except for the legislation concerning the invalidity
                      insurance of the social security scheme for miners
                  2. Self-employed persons
                      The legislation on invalidity insurance for persons self-employed in agriculture
              F. GREECE
                  Legislation relating to the agricultural insurance scheme
              G. IRELAND
                  Chapter 10 of Part II of the Social Welfare Consolidation Act — 1981
              H. ITALY
                  None
              I.   LUXEMBOURG
                  None
             J. T H E NETHERLANDS
                  (a) The Law of 18 February 1966 on insurance against incapacity for work, as amended
                  (b) The Law of 11 December 1975 on general insurance against incapacity for work, as amended
              K. PORTUGAL
                 None
 ---pagebreak--- 11. 8. 89                           Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s          N o C 206/15
          L. U N I T E D K I N G D O M
             (a) Great Britain
                  Section 15 of the Social Security Act 1975
                  Sections 14 to 16 of the Social Security Pensions Act 1975
             (b) Northern Ireland
                  Section 15 of the Social Security (Northern Ireland) Act 1975
                  Articles 16 to 18 of the Social Security Pensions (Northern Ireland) Order 1975
                                                                        B
          Special schemes for self-employed persons within the meaning of Articles 38 (3) and 45 (3) of Regulation
                                                           (EEC) No 1408/71
          A. BELGIUM
             None
          B. DENMARK
             None
          C. GERMANY
             Old-age insurance for farmers (Altershilfe fur Landwirte)
          D. SPAIN
             Scheme for lowering the retirement age of self-employed persons engaged in seafaring activities as
             described in Royal Decree No 2309 of 23 July 1970
          E. FRANCE
             None
          F. GREECE
             None
          G. IRELAND
             None
          H. ITALY
             Pension insurance schemes for (Assicurazione pensioni per):
             — medical practitioners (medici)
             — pharmacists (farmacisti)
             — veterinarians (veterinari)
             — midwives (ostetriche)
             — engineers and architects (ingegneri ed architetti)
             — surveyors (geometri)
             — solicitors and barristers (awocati e procuratori)
             — economists (dottori commercialisti)
             — accountants and industrial experts (ragionieri e periti commerciali)
             — employment experts (consulenti del lavoro)
             — notaries (notai)
             — customs agents (spedizionieri doganali)
 ---pagebreak--- N o C 206/16                           Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s              11. 8. 89
              I.  LUXEMBOURG
                  None
             J. T H E NETHERLANDS
                  None
              K. PORTUGAL
                  None
              L. UNITED K I N G D O M
                  None
                                                                     C
              Cases referred to in Article 46 (1) (b) of the Regulation where the calculation of benefit in accordance
                                          with Article 46 (2) of the Regulation may be waived
             A. BELGIUM
                 None
             B. DENMARK
                 All applications for pensions referred to in the law on social pensions, except for pensions mentioned
                 in Section D of Annex IV
             C. GERMANY
                 None
             D. SPAIN
                 None
             E. FRANCE
                 None
             F. GREECE
                 None
             G. IRELAND
                 All applications for retirement pensions, contributory old-age pensions and widowhood pensions
             H. ITALY
                 Invalidity, retirement and survivors' pensions for employed persons and for the following categories
                 of self-employed persons: farmers farming directly, share-croppers, farmers, craftsmen and persons
                 engaged in commerical activities
             I.   LUXEMBOURG
                 None
             J. T H E NETHERLANDS
                 All applications for old-age pensions under the law of 31 May 1956 governing general old-age
                 insurance, as amended
             K. PORTUGAL
                 Invalidity, old-age and widowhood pensions
             L. UNITED K I N G D O M
                 All claims for retirement pension and widow's pension determined under the provisions of Chapter 3
                 of Title III of the Regulation except those in respect of which, in any relevant income tax year
                 commencing on or after 6 April 1975, the person concerned has completed periods of insurance,
                 employment or residence both under the legislation of the United Kingdom and under that of
                 another Member State
 ---pagebreak--- 11. 8. 89                                   Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s         N o C 206/17
                                                                          D
                                   Benefits and agreements referred to in Article 46b (2) of the Regulation
             1. Benefits referred to in Article 46b (2) (a) of the Regulation, the amount of which is independent of
                the length of periods of insurance or residence completed:
                (a) The invalidity benefits provided for by the legislations referred to in Part A of this Annex, except
                      for the benefits provided for by Greek legislation relating to the agricultural insurance scheme;
                (b) The full Danish national old-age pension acquired after 10 years' residence by persons who will
                      have been awarded a pension by 1 October 1989 at the latest;
                (c) The Netherlands widows' pension under the law of 9 April 1959 governing the general insurance
                      for widows and orphans, as amended;
                (d) The Spanish survivors' pensions granted under the general and special schemes.
             2. Benefits referred to in Article 46b (2) (b) of the Regulation, the amount of which is determined by
                reference to a credited period deemed to have been completed between the date on which the risk
                materialized and a later date:
                (a) Danish early-retirement pensions, the amount of which is determined in accordance with
                      legislation in force before 1 October 1984;
                (b) The German invalidity and survivors' pensions for which account is taken of a supplementary
                      period and German old-age pensions for which account is taken of a supplementary period
                      already acquired;
                (c) The Luxembourg invalidity and survivors' pensions;
                (d) The Italian pensions for total incapacity for work ('inabilita').
             3. Agreements referred to in Article 46 (2) (b) (i) of the Regulation intended to prevent the same
                credited period being taken into account two or more times:
                Agreement of 20 July 1978 between the Government of the Grand Duchy of Luxembourg and the
                Government of the Federal Republic of Germany concerning various social security matters.'
          7. A n n e x V I shall be a m e n d e d as follows:
             (a) T h e heading B ( D e n m a r k ) shall be a m e n d e d as follows:
                    (i) P a r a g r a p h 7 shall be replaced by the following text:
                         'The provisions of Article 46c (1) and (3) of the Regulation and of Article 7 (1) of the
                         Implementing Regulation shall not be applied to pensions awarded in the context of Danish
                         legislation.'
                   (ii) P a r a g r a p h 9 shall be replaced by the following text:
                         'Where the beneficiary of a Danish retirement pension or early retirement pension is also
                         entitled to a survivor's pension from another Member State, these pensions, for the implemen-
                         tation of Danish legislation, shall be regarded as benefits of the same kind within the meaning
                         of Article 46a (1) of the Regulation, subject to the condition, however, that the person whose
                         periods of insurance or of residence serve as the basis for the calculation of the survivor's
                         pension has also completed periods of residence in Denmark.'
             (b) U n d e r h e a d i n g D (Spain) the following new p a r a g r a p h s should be a d d e d :
                   '3. Any employed person or self-employed person who is no longer insured under Spanish legis-
                        lation shall be considered to be still insured when the risk materializes, for the purposes of the
                        implementation of the provisions of Chapter 3 of Title III of the Regulation, if he is insured
                        under the legislation of another Member State at the time of materialization of the risk or,
                        failing that, in the case where a benefit is due, in pursuance of the legislation of another
                        Member State for the same risk. The latter condition shall be deemed to have been fulfilled,
                        however, in the case referred to in Article 48 (1).
 ---pagebreak--- N o C 206/18                               Official J o u r n a l of the E u r o p e a n C o m m u n i t i e s              11. 8. 89
                    4. (a) Under Article 47 of the Regulation, the calculation of the theoretical Spanish benefit shall
                             be carried out on the basis of the actual contributions of the insured person during the
                             years immediately preceding payment of the last contribution to the Spanish social security.
                        (b) The amount of the pension obtained shall be increased by the amount of the increases and
                             revalorizations calculated for each year after and up to the year preceding the realization of
                             the risk for pensions of the same kind.'
             (c) U n d e r heading E (France), the following n e w p a r a g r a p h 7 should be a d d e d :
                  'Any employed person who is no longer subject to French legislation governing widowhood
                  insurance shall be deemed to have the status of an insured person under such legislation when the
                  risk materializes, for the purposes of the implementation of the provisions of Chapter 3 of Title III
                  of the Regulation, if that person is insured as an employed person under the legislation of another
                  Member State at the time of the materialization of the risk or, failing that, in the case where a
                  survivor's benefit is due in pursuance of the legislation on employed persons of another Member
                  State. This condition shall be deemed to have been fulfilled, however, in the case referred to in
                 Article 48 (1).'
             (d) U n d e r h e a d i n g F (Greece), the following n e w p o i n t 4 shall be a d d e d :
                 'In the context of Greek legislation, the application of Article 49 (2) of the Regulation is subject to
                 the condition that the new calculation referred to in the aforementioned Article shall not adversely
                 affect the interests of the person concerned.'
             (e) U n d e r h e a d i n g G (Ireland)
                    (i) point 4 shall be deleted;
                 (ii) points 5 to 8 shall consequently be r e n u m b e r e d .
             (f) H e a d i n g J ( T h e N e t h e r l a n d s ) shall be a m e n d e d as follows:
                 (i) point 3 shall be replaced by the following text:
                       ' (a) Any employed person or self-employed person who is no longer subject to the
                              Netherlands legislation governing widowhood insurance shall be deemed to be insured
                              under such legislation when the risk materializes, for the purposes of the implementation
                              of the provisions of Chapter 3 of Title III of the Regulation, if that person is insured
                              under the legislation of another Member State for the same risk or, failing that, in the case
                              where a survivor's benefit is due in pursuance of the legislation of another Member State.
                              The latter condition shall be deemed to have been fulfilled, however, in the case referred
                              to in Article 48 (1).
                         (b) Where in application of subparagraph (a) of this paragraph, a widow has the right to a
                              widow's pension under Netherlands legislation relating to general insurance for widows
                              and for orphans, that pension shall be calculated in accordance with the provisions of
                              Article 46 (2) of the Regulation.'
                              For the application of these provisions, the periods of insurance completed before 1
                              October 1959 during which the employed person or self-employed person resided on the
                              territory of the Netherlands before attaining the age of 15 years or during which, while
                              still resident on the territory of another Member State, he carried out a gainful activity in
                              the Netherlands for an employer established in that country, shall also be regarded as
                              periods of insurance completed under the aforementioned Netherlands legislation.'
                         (c) Account shall not be taken of the periods to be taken into consideration under the
                              provisions of subparagraph (b), which coincide with periods of insurance completed under
                              the legislation of another Member State in respect of survivors' pensions.'
                 (ii) P a r a g r a p h 4 shall be replaced by the following text:
                      '(a) Any employed person or self-employed person who is no longer insured under the Law of
                              18 February 1966 relating to insurance against incapacity for work (WAO) and/or under
                              the Law of 11 December 1975 relating to incapacity for work (AAW) shall be considered
                              to be still insured at the time of the materialization of the risk for the purposes of the
                              implementation of the provisions of Chapter 3 of Title III of the Regulation, if he is
                              insured for the same risk under the legislation of another Member State or, failing that, in
                              the case where a benefit is due under the legislation of another Member State for the same
                              risk. The latter condition shall be considered to be fulfilled, however, in the case referred
                              to in Article 48 (1).
                         (b) If in application of subparagraph (a) of this paragraph, the person concerned is entitled to
                              a Netherlands invalidity benefit, that benefit shall be awarded in accordance with rules
                              laid down by Article 46 (2) of the Regulation:
 ---pagebreak--- 11. 8. 89                                    Official Journal of the European Communities                                       No C 206/19
                                (i) in accordance with the provisions laid down by the abovementioned law of 18
                                     February 1966 (WAO), if, at the time of occurrence of the incapacity for work he had
                                     been insured for the same risk under the legislation of another Member State as an
                                     employed person within the meaning of Article 1 (a) of the Regulation;
                               (ii) in accordance with the provisions laid down by the abovementioned law of 11
                                     December 1975 (AAW), if the person concerned at the time when the incapacity for
                                     work arose:
                                     — was insured for the risk under the legislation of another Member State but not in
                                          the capacity of employed person within the meaning of Article 1 (a) of the Regu-
                                          lation, or
                                     — was not insured for the risk under the legislation of another Member State, but
                                          can assert a claim to benefits under the legislation of another Member State.
                                     If the amount of the benefit calculated in application of the provision laid down in (i)
                                     is less than that resulting from the application of the provision laid down in (ii), the
                                     last-mentioned benefit shall be payable.
                          (c) For the calculation of the benefits awarded in accordance with the abovementioned law of
                               18 February 1966 (WAO) or in accordance with the abovementioned law of 11 December
                               1975 (AAW), the Netherlands institutions shall take account of:
                              — periods of paid employment and periods treated as such completed in the Netherlands
                                    before 1 July 1967,
                              — periods of insurance completed under the abovementioned law of 18 February 1966
                                    (WAO),
                              — periods of insurance completed under the abovementioned law of 11 December 1975
                                    (AAW) in so far as these do not coincide with the periods of insurance completed
                                    under the abovementioned law of 18 February 1966 (WAO).
                          (d) For the calculation of the Netherlands invalidity benefit in application of Article 40 (1) of
                              the Regulation, the Netherlands institutions do not take account of any supplements to be
                              awarded under the provisions of the Law on supplements. The right to that supplement
                              and the amount thereof are calculated only on the basis of the provisions of the Law on
                              supplements.'
                 (g) In heading L (United Kingdom):
                      (i) point 9 shall be deleted;
                     (ii) points 10 to 15 shall consequently be renumbered.
                           Article 3                                        3. The title of Article 35 shall read as follows:
Regulation (EEC) No 574/72 shall be amended as                                  'Applications for invalidity benefits where an employed
follows:                                                                        person or a self-employed person has been subject only to the
                                                                                legislations mentioned in Part A of Annex IV to the Regu-
                                                                                lation and also in the case referred to in Article 40 (2) of the
1. Article 7 shall be replaced by the following text:                           Regulation'.
   '1.    Where the benefits due under the legislation of                   4. The title of Article 39 shall read as follows:
   two or more Member States are conditional upon
   mutual reductions, suspensions or withdrawals, the                           'Investigation of applications for invalidity benefits where an
    amounts which would not be paid in strict application                       employed person or a self-employed person has been subject
   of the provisions concerning reduction, suspension or                        only to the legislations mentioned in Part A of Annex IV to
   withdrawal provided for by the legislation of the                            the Regulation.
   Member States concerned, shall be divided by the
   number of benefits subject to reduction, suspension or                   5. Article 46 shall read as follows:
   withdrawal.
                                                                                'Amounts due for periods of voluntary insurance or
   2.    In order to implement the provisions of Article                        optional continued insurance, which must not be
    12 (2), (3) and (4), of Article 46a, of Article 46b and                     taken into consideration under the provisions of
   Article 46c of the Regulation, the competent                                 Article 15 (1) (b) of the implementing Regulation.
   institutions concerned shall provide each other, at
   their own request, with all appropriate information.'                        For the calculation of the theoretical amount and of
                                                                                the actual amount of the benefit in accordance with
                                                                                the provisions of Article 46 (2) (a) and (b) of the
2. In Article 15 (1) (a), the words 'and Article 46 (2) (c)                     Regulation, the rules laid down in the provisions of
   of the Regulation' shall be replaced by 'and Article 47                      Article 15 (1) (b), (c) and (d) of the implementing
   (1) (a) of the Regulation'.                                                  Regulation shall be applicable.
 ---pagebreak--- No C 206/20                              Official Journal of the European Communities                                 11. 8. 89
   The amount actually due, calculated in accordance                  'Recalculation of benefits
   with the provisions of Article 46 (2) of the Regu-                  1.    In pursuance of the provisions of Article 43 (3)
   lation, shall be increased by the amount which corre-              and (4) of Article 49 (2) and (3) and of Article 51 (2)
   sponds to the periods of voluntary or optional                     of the Regulation shall apply mutatis mutandis.
   continued insurance, which have not been taken into
   account under the provisions of Article 15 (1) (b) of              2.     In the case of the recalculation, withdrawal or
   the implementing Regulation. This increase shall be                suspension of a benefit, the institution which has
   calculated in accordance with the provisions of the                taken such a decision shall notify immediately the
   Member State's legislation under which the periods                 person concerned and each of the institutions on
   of voluntary insurance or of optional continued                    which the person concerned has a claim, if necessary
   insurance have been completed.                                     through the good offices of the investigating
                                                                      institution. The decision must specify the grounds and
   The comparison referred to in Article 46 (3) of the                time limits for appeal provided for by the legislation
   Regulation must be made bearing the aforesaid                      in question. Periods allowed for appeals shall
   increase in mind.'                                                 commence only on the date of receipt of the decision
                                                                      by the person concerned.
6. Article 47 shall read as follows:
                                                                   9. Paragraph 1 of Article 107 shall read as follows:
   'Calculation of the amounts due corresponding to the periods
   of voluntary or optional continued insurance                       '1.     For the purpose of implementing the following
                                                                      provisions:
   In accordance with the legislation it applies, the                 (a) Regulation: Article 12 (2), (3) and (4), Article 19
   institution of each Member State shall calculate the                    (1) (b) last sentence, Article 22 (1) (ii) last
   amount corresponding to the periods of voluntary or                     sentence, Article 25 (1) (b) penultimate sentence
   optional continued insurance, which, under Article                     Article 41 (1) (c) and (d), Article 46a (3), Article
   46a (3) (c) of the Regulation, is not subject to the                    50, Article 52 (b) last sentence, Article 55 (1) (ii)
   provisions for withdrawal, reduction or suspension of                   last sentence, Article 70 (1) first subparagraph,
   another Member State.'                                                 Article 71 (1) (b) (ii) penultimate sentence;
7. Article 48 (1) shall read as follows:                              (b) implementing Regulation        Article  34  (1)  and
                                                                          Article 120 (2),
   '1.     The final decision taken by each of the
                                                                      the rate for the conversion into a national currency of
   institutions concerned shall be notified to the investi-
                                                                      amounts denominated in another national currency
   gating institution. Each of these decisions must specify
                                                                      shall be the rate calculated by the Commission and
   the grounds and time-limits for appeal provided for
                                                                      based on the monthly average, during the reference
   by the legislation in question. When all these decisions
                                                                      period specified in paragraph 2, of rates of exchange
   have been received, the investigating institution shall
                                                                      of such currencies which are communicated to the
   communicate them to the claimant in his own
                                                                      Commission for the application of the European
   language by means of a summarized statement to
                                                                      Monetary System.'
   which the aforesaid decisions shall be appended.
   Periods allowed for appeals shall commence only on
                                                                                               Article 4
   the date of receipt of the summarized statement by
   the claimant.'                                                  This Regulation shall enter into force on the twentieth
                                                                   day following its publication in the Official Journal of the
8. Article 49 shall read as follows:                               European Communities.