30.12.1995   

EN

Official Journal of the European Communities

L 335/1

1.

Whereas there is a need for certain amendments to be made to Regulations (EEC) No 1408/71 (4) and (EEC) No 574/72 (5); whereas some of these amendments relate to changes made by the Member States to their social security legislation while others are of a technical nature and are designed to refine the said Regulations;

2.

Whereas, in order to facilitate temporary residence and access to treatment with the authorization of the competent institution in European Union territory, the benefit of Article 22 (1) (a) and (c) should be extended to all nationals of Member States who are insured under the legislation of a Member State and to the members of their families residing with them, even if they are neither employed nor self-employed;

3.

Whereas in so far as the totally unemployed person referred to in Article 71 (1) () (ii) or (b) (ii) is entitled to benefits for sickness and maternity and to family benefits provided by the competent institution of the Member State in whose territory he resides, as well as to credits for periods of total unemployment conferring entitlement as regards invalidity and old age provided by the said institution, in accordance with the legislation applied by that State (Articles 25 (2), 39 (6), 45 (6) and 72a of Regulation (EEC) No 1408/71) it follows that the Member State of residence should be able to deduct the contributions for these benefits where necessary, and consequently provisions should be introduced to enable the State to make such deductions if its own legislation so provides;

4.

Whereas it would appear necessary to ensure that a family does not lose rights to family benefits because the timelimit for claims is too short, and for this purpose Article 86 of Regulation (EEC) No 1408/71 should be amended;

5.

Whereas, for reasons of efficacy, it would be preferable to group together all the transitional provisions concerning special non-contributory benefits in a new Article 95b of Regulation (EEC) No 1408/71;

6.

Whereas certain amendments should be made to headings ‘G. IRELAND’ and ‘O. UNITED KINGDOM’ in Annex I, part II to Regulation (EEC) No 1408/71 to take account of the interpretation given by the Irish and United Kingdom authorities to the concept of ‘member of the family;’

7.

Whereas it is necessary to add to Annex Ha to Regulation (EEC) No 1408/71 under the heading ‘B. DENMARK’ a flat-rate rehabilitation allowance, which constitutes a non-exportable special non-contributory benefit;

8.

Whereas it is necessary to delete the ‘entry compensatory cost-of-living allowance’ in Annex IIa under heading ‘I. LUXEMBOURG’ since that allowance no longer exists in Luxembourg legislation;

9.

Whereas, as a result of an agreement concluded between the Greek and German authorities, an addition should be made to Annex III, Part B, point 30 to Regulation (EEC) No 1408/71;

10.

Whereas it would appear necessary to adapt heading ‘F. GREECE’ of Annex VI to Regulation (EEC) No 1408/71 as a result of the restructuring of social insurance and of various amendments made to Greek legislation;

11.

Whereas in view of the possibility for insured persons to change more frequently from one sickness insurance institution to another, it is necessary to amend Articles 17 (2) and 30 (1) of Regulation (EEC) No 574/72 for the purpose of extending to German, Italian and Portuguese institutions a specific provision already provided for in respect of French institutions;

12.

Whereas Article 95 of Regulation (EEC) No 574/72 should be amended to bring a little closer the fixed amount to be reimbursed and the amount of the actual expenditure incurred by the institutions of the Member States; whereas provision should be made for a transitional period for relations with the French Republic in view of the administrative difficulties which might be encountered by that State;

13.

Whereas the wording of Article 107 (1) of Regulation (EEC) No 574/72 should be amended to take account of the amendments that have been made by Regulations (EEC) No 2195/91 (6), (EEC) No 1248/92 (7) and (EEC) No 1249/92 (8);

14.

Whereas following administrative changes in Denmark, heading ‘B. DENMARK’ of Annexes 2, 3, 4 and 10 to Regulation (EEC) No 574/72 should be adjusted accordingly;

15.

Whereas points ‘13. DENMARK — SPAIN’ and ‘15. DENMARK — GREECE’ of Annex 5 to Regulation (EEC) No 574/72 should be adjusted to take account of the agreements concluded by these Member States;

16.

Whereas the said Annex 5 should also be amended as a result of agreements between the Netherlands and Greece and between the Netherlands and the United Kingdom pursuant to Article 36 (3) of Regulation (EEC) No 1408/71;

17.

Whereas it is necessary to adapt the heading ‘A. BELGIUM’ of Annex 10 to Regulation (EEC) No 574/72 for the purpose of mentioning the competent institution referred to in Article 10b of the said Regulation;

18.

Whereas, as a result of administrative reorganization of sickness insurance in Luxembourg, the entries in Annexes 2, 3, 4, 9 and 10 to Regulation (EEC) No 574/72 under the heading ‘I. LUXEMBOURG’ should be amended;

19.

Whereas, as a result of a change in the denomination of the Netherlands Labour Councils, it is necessary to adapt Annexes 2, 3 and 4 to Regulation (EEC) No 574/72 under heading ‘J. THE NETHERLANDS’;

20.

Whereas Article 2 of Regulation (EEC) No 1247/92 and Article 3 of Regulation (EEC) No 1945/93 should be deleted as the content thereof is contained in Regulation (EEC) No 1408/71 itself; whereas in Article 4 of Regulation (EEC) No 1945/93, it is consequently necessary to delete point 10 in which reference is made to the deleted provisions,

1.

the following Article shall be added after Article 22:

‘Article 22a

Special rules for certain categories of persons

Notwithstanding Article 2 of this Regulation, Article 22 (1) (a) and (c) shall also apply to persons who are nationals of a Member State and are insured under the legislation of a Member State and to the members of their families residing with them.’;

2.

the following Article shall be inserted after Article 25:

‘Article 25a

Contributions payable by wholly unemployed persons

The institution which is responsible for granting benefits in kind and cash benefits to the unemployed persons referred to in Article 25 (2) and which belongs to a Member State whose legislation provides for deduction of contributions payable by unemployed persons to cover sickness and maternity benefits shall be authorized to make such deductions in accordance with the provisions of its legislation.’;

3.

in Article 39, the following subparagraph shall be inserted after the first subparagraph of paragraph 6:

‘Where that institution applies legislation providing for deduction of contributions payable by unemployed persons to cover invalidity benefits, it shall be authorized to make such deductions in accordance with the provisions of its legislation.’;

4.

in Article 45, the following subparagraph shall be added after the first subparagraph of paragraph 6:

‘Where that institution applies legislation providing for deduction of contributions payable by unemployed persons to cover old age pensions and death, it shall be authorized to make such deductions in accordance with the provisions of its legislation.’;

5.

Article 72a shall be supplemented by the following paragraph:

‘Where that institution applies legislation providing for deduction of contributions payable by unemployed persons to cover family benefits, it shall be authorized to make such deductions in accordance with the provisions of its legislation.’;

6.

in Article 86 the existing text shall become paragraph 1 and the following paragraph shall be added:

‘2.   Where a person entitled to do so under the legislation of a Member State has submitted to that State a claim for family benefits even though that State is not competent by priority right, the date on which that first application was made shall be considered as the date on which it was submitted to the competent authority, institution or tribunal, provided that a new application is submitted in the Member State which is competent by priority right by a person entitled to do so under the legislation of that State. The second application must be submitted within a period of one year after notification of the rejection of the first application or the cessation of payment of benefits in the first Member State.’;

7.

the following Article shall be added after Article 95a:

‘Article 95b

Transitional provisions for application of Regulation (EEC) No 1247/92

1.   Regulation (EEC) No 1247/92 shall not provide any entitlement for periods prior to 1 June 1992.

2.   The periods of residence and periods of employment or of self-employment completed on the territory of a Member State before 1 June 1992 shall be taken into consideration for the determination of rights acquired under the provisions of Regulation (EEC) No 1247/92.

3.   Subject to paragraph 1, a right shall be acquired pursuant to Regulation (EEC) No 1247/92 even where it relates to a contingency that occurred before 1 June 1992.

4.   All special non-contributory benefits which have not been awarded or which have been suspended by reason of the nationality of the person concerned shall, on the application of the person concerned, be awarded or resumed with effect from 1 June 1992, provided that the rights previously determined have not given rise to a lump-sum payment.

5.   The rights of persons to whom a pension was awarded prior to 1 June 1992, may, on the application of the persons concerned, be reviewed, taking account of the provisions of Regulation (EEC) No 1247/92.

6.   If an application referred to in paragraph 4 or 5 is submitted within two years from 1 June 1992, the rights acquired pursuant to Regulation (EEC) No 1247/92 shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.

7.   If an application referred to in paragraph 4 or 5 is submitted after the expiry of the two-year period after 1 June 1992, rights which have not been forfeited or which are not time-barred shall have effect from the date on which the application was submitted, except where more favourable provisions of the legislation of any Member State apply.

8.   The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the withdrawal of benefits which are awarded before 1 June 1992 by the competent institutions of the Member States under Title III of Regulation (EEC) No 1408/71 to which Article 10 of the latter Regulation is applicable.

9.   The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the rejection of an application for a special non-contributory benefit awarded as a supplement to a pension, which was submitted by the person concerned who had satisfied the conditions for the award of this benefit before 1 June 1992, even where the person concerned resides on the territory of a Member State other than the competent Member State, provided that the application for the benefit is submitted within a period of five years starting from 1 June 1992.

10.   Notwithstanding the provisions of paragraph 1, any special non-contributory benefit, granted as a supplement to a pension, which has not been awarded or which has been suspended by reason of the residence of the person concerned on the territory of a Member State other than the competent Member State shall, on the application of the person concerned, be awarded or resumed with effect from 1 June 1992, in the first case from the date on which the benefit should have been awarded, and in the second case on the date of suspension of the benefit.

11.   Where special non-contributory benefits as referred to in Article 4 (2a) of Regulation (EEC) No 1408/71 may, during the same period and for the same person, be granted pursuant to Article 10a of that Regulation by the competent institution of the Member State in the territory of which that person is resident and pursuant to paragraphs 1 to 10 of this Article by the competent institution of another Member State, the person concerned may only aggregate those benefits up to the limit of the highest amount of the special benefit he could claim under one of the legislations in question.

12.   The detailed rules of application of paragraph 11, and in particular the application, with regard to the benefits referred to in that paragraph, of the clauses for reduction, suspension or abolition provided for under the legislation of one or more Member States and the allocation of the differential additional amounts shall be set by decision of the Administrative Commission on Social Security for Migrant Workers and, where appropriate, by common accord of the Member States concerned or their competent authorities.’;

8.

in Annex I, Part II, the heading ‘G. IRELAND’ shall be replaced by the following:

‘G.   IRELAND

In order to determine the right to benefits in kind for sickness and maternity in application of the Regulation, the term “member of the family” shall mean any person considered as being a dependant of an employed person or of a self-employed person for the application of the Health Acts of 1947 to 1970.’;

9.

in Annex I, Part II, the heading ‘O. UNITED KINGDOM’ shall be replaced by the following:

‘O.   UNITED KINGDOM

For the purpose of determining entitlement to benefits in kind, the term “member of the family” means:

10.

Annex IIa shall be amended as follows:

11.

In Annex III, Part A, the heading ‘30. GERMANY — GREECE’ shall be supplemented by the following:

12.

in Annex III, Part B, the heading ‘30. GERMANY — GREECE’ shall be supplemented by the following:

‘30.   GERMANY — GREECE

Protocol of 7 October 1991 in conjunction with the Agreement of 6 July 1984 between the Government of the German Democratic Republic and the Government of the Hellenic Republic on the settlement of problems relating to pensions.’;

13.

Annex VI shall be amended as follows:

1.

the second sentence of Article 17 (2) and the last sentence of Article 30 (1) shall be replaced by the following:

‘However, where the said certified statement has been issued by a German, French, Italian or Portuguese institution, it shall be valid only for a period of one year following the date on which it was issued and must be renewed every year.’;

2.

Article 95 shall be replaced by the following text:

‘Article 95

Refund of benefits in kind provided under sickness and maternity insurance to pensioners and to members of their families who are not resident in a Member State under whose legislation they receive a pension and are entitled to benefits.

1.   The amount of the benefits in kind provided pursuant to Articles 28 (1) and 28a of the Regulation shall be refunded by the competent institutions to the institutions which provided the said benefits, on the basis of a lump sum which is as close as possible to the actual expenditure incurred.

2.   The lump sum shall be determined by multiplying the annual average per capita cost by the average annual number of pensioners and members of their families to be taken into account and by reducing the resultant amount by 20 %.

3.   The factors necessary for the calculation of the said lump sum shall be determined according to the following rules:

4.   The number of pensioners and members of their families to be taken into account in accordance with paragraph 3 (b) shall be determined by means of a list kept for that purpose by the institution of the place of residence, based upon documentary evidence supplied by the competent institution of the rights of the persons concerned. In the event of any dispute, the observations of the institutions involved shall be submitted to the Audit Board provided for in Article 101 (3) of the implementing Regulation.

5.   The Administrative Commission shall lay down the methods and procedures for determining the calculation factors referred to in paragraphs 3 and 4.

6.   Two or more Member States or the competent authorities of those Member States may, after receiving the opinion of the Administrative Commission, agree to introduce other methods of assessing the amounts to be refunded.’;

3.

Article 107 (1) shall be replaced by the following:

‘1.   For the purposes of the following provisions:

the rate of conversion into a national currency of amounts expressed in another national currency shall be the rate calculated by the Commission based on the monthly average during the reference period defined in paragraph 2 of the rates of exchange of these currencies which have been notified to the Commission for the implementation of the European monetary system.’;

4.

Annex 2 shall be amended as follows:

5.

Annex 3 shall be amended as follows:

6.

Annex 4 shall be amended as follows:

7.

Annex 5 s hall be amended as follows:

8.

in Annex 9, the heading ‘I. LUXEMBOURG’, shall be replaced by the following:

‘I.   LUXEMBOURG

All sickness funds and the sickness funds' association shall be taken into consideration when calculating the annual average cost of benefits in kind.’;

9.

Annex 10 shall be amended as follows:

1.

Article 3 is deleted;

2.

In Article 4, point 10 shall be deleted.