title: Proposal for a Council Decision on on the position of the Community within the Association Council concerning implementation of Article 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part

eurovoc_concepts:
Tunisia
association agreement (EU)
social security
social-security benefit
social-security harmonisation

formats: html pdf

text: COMMISSION OF THE EUROPEAN COMMUNITIES Brussels, 13. 04. 2000 COM(2000) 216 final Proposal for a COUNCIL DECISION on on the position of the Community within the Association Council concerning implementation of Article 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part (presented by the Commission) EXPLANATORY MEMORANDUM The aim of this proposal is to implement the provisions governing social security coordination contained in the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and Tunisia of the other, signed in Brussels on 17 July 19951. In accordance with Article 67 of that agreement, the said provisions are to be adopted by the Association Council. 1. LEGAL BASIS The draft decision of the Association Council is based on Articles 65, 66, 67 and 68 of the EC-Tunisia Association Agreement. 2. GENERAL CONSIDERATIONS 2. 1. Content of the Agreement The EU-Tunisia association agreement provides for a coordination system to be set up on the following bases: 1. Concerning Tunisian workers legally resident and legally employed in a Member State, as well as the members of their family legally resident in a Member State: (a) the absence of any discrimination based on nationality; (b) (c) (d) aggregation of periods of insurance, employment or residence completed under the legislation of one or more Member States for acquisition of entitlement, in another Member State, to pensions in respect of old age, invalidity and survivors, to family benefits and to sickness and maternity benefits; payment of family allowances to persons employed in a Member State and whose family members are resident within the Community; exportation to Tunisia of pensions in respect of old age, survivors, accidents at work/occupational diseases or invalidity arising therefrom; 2. Concerning workers who are nationals of a Member State resident and working legally in Tunisia and the members of their family legally resident there: affording, by analogy, the advantages referred to in 1(a), 1(c) and 1(d) above. 2. 2. Purpose of the agreement The purpose of the EU-Tunisia Association Agreement is to set up a coordination system to provide Tunisian workers with protection along the lines of that which Community regulations provide for European citizens. 1 OJ L 97, 30 March 1998. 2 However, the provisions of the Agreement do not form part of the arrangements relating to free movement for workers and do not set out to treat Tunisian workers in as favourable a manner as that guaranteed by the system of coordination of social security schemes set up by Regulation 1408/71. 3. COMMENTARY ON DRAFT DECISION 3. 1. Presentation of the draft The decision must cover the provisions relating to the obligations of each Contracting Party and the provisions relating only to Member States' obligations in respect of Tunisian workers. The draft decision breaks down as follows: – – – Parts I, III, and IV relate to the Member States and Tunisia; Part II is applicable by Member States alone. annexes containing further details on applying the decision to the legislations of the Member States and Tunisia. 3. 2. Content of draft decision COMMENTARY ON ARTICLES. PART I - GENERAL PROVISIONS Article 1 The terms defined in this Article correspond more or less to the definitions in Regulation 1408/71. However, in keeping with the provisions of the agreement, the term 'worker' refers to employed persons only. Finally, some definitions in Regulation 1408/71 refer to the Member States and so it has been necessary to add a reference to Tunisia as well. Article 2 This Article defines which persons are covered by the Decision, i. e. Tunisian workers and nationals of a Member State, as well as the members of their family and their survivors, who are legally employed and reside legally in a Member State or in Tunisia. Article 3 This provision contains the standard formulation concerning the principle of equality of treatment which corresponds, by analogy, to Article 3 of Regulation 1408/71. The 'matters covered' takes into account the concept of social security as specified by the Agreement and corresponds to Article 4 of Regulation 1408/71. Article 4 3 Article 5 This provision corresponds to Article 5 of Regulation 1408/71 and allows each Contracting Party to become acquainted with the legislations and schemes to which the Decision applies. Article 6 This Article, based on Article 3(3) of Regulation 1408/71, extends application of certain social security conventions – mentioned in Annex III - concluded between Member States to the Tunisian workers covered by the Decision. Article 7 Paragraph 1 deals with the waiving of the residence rules governing the benefits listed by the Agreement. Firstly, it will be possible to export to any Member State the benefits which a Tunisian worker acquires under the legislation of one or more Member States. Secondly, benefits acquired under Tunisian legislation must be exportable to any Member State and, conversely, benefits acquired under the legislation of one or more Member States will be exportable to Tunisia. Article 8 This provision concerns the payment of special non-contributory benefits in the territory of the Member State where the person concerned is resident, without the possibility of exporting them, but also without aggregation of periods, in accordance with the provisions of the Agreement. Article 9 This provision concerns revalorisation of benefits and corresponds to Article 11 of Regulation 1408/71. Where the legislation of a Member State contains such rules, they are applicable to the benefits acquired in application of the Decision. Article 10 This provision refers to the arrangements under Article 12 of Regulation 1408/71 regarding application of the rules to prevent overlapping. PART II - PROVISIONS CONCERNING APPLICATION OF MEMBER STATES' SOCIAL SECURITY SCHEMES TO TUNISIAN WORKERS AND THE MEMBERS OF THEIR FAMILY TITLE I DETERMINATION OF THE APPLICABLE LEGISLATION Articles 11 to 18 These provisions more or less replicate the rules for determining the legislation applicable contained in Regulation 1408/71 and relating to employed persons. Their aim is to avoid situations in which persons covered by the Decision are simultaneously subject to two social security legislations (double contribution) or, on the contrary, to none (lack of protection). These rules are based on the principle whereby only one legislation is applicable, generally 4 that of the worker's State of employment, but also lay down special rules, especially as regards posted workers. TITLE II SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OF BENEFITS Articles 19 to 38 These provisions more or less correspond to the Chapter on "Sickness and maternity" in Regulation 1408/71. Articles 39 to 45 These provisions more or less correspond to the Chapter on "Invalidity" in Regulation 1408/71. Articles 46 to 56 These provisions more or less correspond to the Chapter on "Old age and death (pensions)" in Regulation 1408/71. Articles 57 to 68 These provisions more or less correspond to the Chapter on "Accidents at work and occupational diseases" in Regulation 1408/71. Articles 69 to 71 These provisions more or less correspond to the Chapter on "Death grants" in Regulation 1408/71. These provisions correspond to the Chapter on "Family benefits" in Regulation 1408/71. Articles 72 to 76 Articles 77 to 79 These provisions correspond to the Chapter on "Benefits for dependent children of pensioners and for orphans" in Regulation 1408/71. PART III - MISCELLANEOUS PROVISIONS These provisions, which replicate some articles of Regulation 1408/71, deal mainly with the arrangements for cooperation between the authorities of the Member States and of Tunisia. PART IV - TRANSITIONAL AND FINAL PROVISIONS This part, which relates to both Tunisia and the Member States, concerns the subsequent arrangements for applying the Decision. The Council is invited to adopt a decision on the Community's position as reflected in the appended Draft Decision of the EC-Tunisia Association Council. 5 Proposal for a COUNCIL DECISION on on the position of the Community within the Association Council concerning implementation of Article 65 of the Euro-Mediterranean Agreement establishing an association between the European Communities and their Member States, of the one part, and the Republic of Tunisia, of the other part THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty establishing the European Community, and in particular the first sentence of the second paragraph of article 300 there of, Having regard to the proposal of the Commission1, Whereas: (1) The Euro-Mediterranean Agreement establishing an Association between the European Communities and their Member States, of the one part, and Tunisia, of the other part, was concluded by Decision of the Council and the Commission of 26 January 1998. (2) Article 65 of the Agreement makes provision for coordination of the social security schemes of the European Union Member States and of Tunisia, HAS DECIDED AS FOLLOWS : Article 1 The position to be taken by the Community within the Association Council established by the Euro-Mediterranean Agreement between the European Communities and their Member States, of the one part, and Tunisia, of the other part, concerning implementation of Article 67 of that Agreement, is that set out in the attached Draft Decision of the Association Council. Done at Brussels, 1 OJ C …, …, p. … For the Council The President 6 DRAFT DECISION No. OF THE ASSOCIATION COUNCIL between the European Communities and their Member States, of the one part, and Tunisia, of the other part of … on coordination of the social security schemes of the European Union Member States and of Tunisia THE ASSOCIATION COUNCIL Having regard to the Agreement establishing an Association between the European Communities and their Member States, of the one part, and Tunisia, of the other part,1 Whereas Articles 65, 66, 67 and 68 of the Association Agreement provide for coordination of the social security schemes of the EU Member States and of Tunisia, HAS DECIDED AS FOLLOWS : PART I - GENERAL PROVISIONS Article 1 Definitions For the purpose of application of this Decision: a) the term “worker” means: i) ii) any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons; any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Decision under a social security scheme for all residents or for the whole economically active population, if such person: – or – - can be identified as an employed person by virtue of the manner in which such scheme is administered or financed, - failing such criteria, is insured compulsorily or on an optional continued basis for some other contingency specified in Annex I, under a scheme for employed persons or under a scheme referred to in (iii), or, where no 1 OJ L 97, 30 March 1998. 7 such scheme exists in the State concerned, complies with the definition given in Annex I; iii) iv) any person who is compulsorily insured for several of the contingencies covered by the branches dealt with in this Decision, under a standard social security scheme for the whole rural population in accordance with the criteria laid down in Annex I; any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this Decision, under a social security scheme for employed persons or for all residents or for certain categories of residents: – or – if they pursue activity as an employed person if such person has previously been compulsorily insured for the same contingency under a scheme for employed persons of the same State; b) c) d) e) 'frontier worker' means any employed person who pursues his gainful activity in the territory of a Member State and resides in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached, or who engages in the provision of services elsewhere in the territory of the same or another Member State, shall retain the status of frontier worker for a period not exceeding four months, even if he is prevented, during that period, from returning daily or at least once a week to the place where he resides; 'seasonal worker' means any employed person who goes to the territory of a Member State other than the one in which he is resident to do work there of a seasonal nature for an undertaking or an employer of that State for a period which may on no account exceed eight months if he stays in the territory of the said State for the duration of this work; 'work of a seasonal nature' shall be taken to mean work which, being dependent on the succession of the seasons, automatically recurs each year; 'member of the family' means any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Articles 23(1)(a) and 34, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the employed or self- employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. Where the legislation of a Member State on sickness or maternity benefits in kind does not enable members of the family to be distinguished from the other persons to whom it applies, the term 'member of the family' shall have the meaning given to it in Annex I; 'survivor' means any person defined or recognised as such by the legislation under which the benefits are granted; where, however, the said legislation regards as a survivor only a person who was living under the same roof as the deceased, this 8 f) g) h) i) j) k) l) condition shall be considered satisfied if such person was mainly dependent on the deceased; 'residence' means habitual stay; 'stay' means temporary stay; 'legislation' means, for each Member State and for Tunisia, the statutes, regulations and other provisions and all other implementing measures, present or future, relating to the branches and schemes of social security covered by Article 4(1) and (2). The term excludes provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope. However, in so far as such provisions: (i) or (ii) serve to put regulations referred to in the preceding subparagraph; into effect compulsory insurance imposed by the statutes or set up a scheme administered by the same institution as that which administers the schemes set up by the statutes or regulations referred to in the preceding subparagraph, this limitation may at any time be lifted by a declaration of the State concerned specifying the schemes of such a kind to which this Decision applies. Such declaration shall be notified and published in accordance with the provisions of Article 90. 'convention' means any bilateral or multilateral instrument which links or will link either two or more Member States exclusively or a Member State and Tunisia in the social security field, in respect of all or some of the branches and schemes referred to in Article 4(1) and (2), as well as agreements of any type concluded under such instruments; 'competent authority' means, in respect of each Member State and of Tunisia, the Minister, Ministers or other equivalent authority responsible for social security schemes throughout or in any part of the territory of the State in question; 'institution' means, in respect of each Member State and of Tunisia, the body or authority responsible for administering all or part of the legislation; 'competent institution' means: i) or ii) the institution with which the person concerned is insured at the time of the application for benefit; the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State or of Tunisia in which the institution is situated; 9 or iii) or iv) the institution designated by the competent authority of the Member State concerned or of Tunisia; in the case of a scheme relating to an employer's liability in respect of the benefits set out in Article 4(1), either the employer or the insurer involved or, failing that, the body or authority designated by the competent authority of the Member State concerned or of Tunisia; 'institution of the place of residence' and 'institution of the place of stay' mean respectively the institution which is competent to provide benefits in the place where the person concerned resides and the institution which is competent to provide benefits in the place where the person concerned is staying, under the legislation administered by that institution or, where no such institution exists, the institution designated by the competent authority of the Member State in question or of Tunisia; 'competent State' means the State in whose territory the competent institution is situated; 'periods of insurance' means periods of contribution or of employment as defined or recognised as periods of insurance by the legislation under which they were completed or are considered as completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of insurance; 'periods of employment' means periods so defined or recognised by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment; 'periods of residence' means periods so defined or recognised by the legislation under which they were completed or are considered as completed; 'benefits' and 'pensions' mean all benefits and pensions, including all elements thereof payable out of public funds, revalorisation increases or supplementary allowances, subject to the provisions of Title II, Part 2, as well as lump-sum benefits which may be paid in lieu of pensions, and payments made by way of reimbursement of contributions; (i) 'family benefits' means all benefits in kind or in cash intended to meet family expenses under a legislation provided for in Article 4(1)(h), excluding the special childbirth or adoption allowances referred to in Annex II; (ii)'family allowances' means periodical cash benefits granted exclusively by reference to the number and, where appropriate, the age of members of the family; 'death grants' means any one-off payment in the event of death, excluding the lump- sum benefits referred to in point (r). 'Regulation 1408/71' means, for the purpose of applying this Decision, Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security 10 m) n) o) p) q) r) s) t) u) schemes to employed persons, to self-employed persons and to members of their families moving within the Community. Article 2 Persons covered Save as otherwise provided for, this Decision shall apply: a) b) 1. 2. 3. 1. to workers of Tunisian nationality legally employed in a Member State and who are or have been subject to the legislation of one or more Member States, as well as to the members of their family legally resident in the territory of a Member State and to their survivors; to workers who are nationals of a Member State legally employed in Tunisia and who are or have been subject to Tunisian legislation, as well as to the members of their family legally resident there and to their survivors. Article 3 Equality of treatment Tunisian nationals to whom the provisions of this Decision are applicable and who reside in the territory of a Member State shall be subject to the obligations and be covered by the legislation of any Member State under the same conditions as nationals thereof, subject to the special provisions contained in this Decision. Similarly, the nationals of a Member State to whom the provisions of this Decision are applicable and who reside in Tunisia shall be subject to the obligations and be covered by Tunisian legislation under the same conditions as nationals thereof, subject to the special provisions contained in this Decision. The provisions of paragraphs 1 and 2 shall apply to the right to elect members of the organs of social security institutions or to participate in their nomination, but shall not affect the legislative provisions of any Member State or of Tunisia relating to eligibility and methods of nomination of persons concerned to those organs. Article 4 Matters covered Taking account of the special provisions which it contains, this Decision shall apply to all legislation concerning the following branches of social security: a) b) c) d) e) sickness and maternity benefits; invalidity benefits; old-age benefits; survivors' benefits; benefits in respect of accidents at work and occupational diseases; 11 f) g) h) death grants; unemployment benefits; family benefits. 2. 3. 4. 5. 6. This Decision shall apply to all general and special social security schemes, whether contributory or non-contributory, and to schemes concerning the liability of an employer or shipowner in respect of the benefits referred to in paragraph 1. This Decision shall also apply to special non-contributory benefits which are provided under legislation or schemes other than those referred to in paragraph 1 or excluded by virtue of paragraph 4, where such benefits are intended: (a) either to provide supplementary, substitute or ancillary cover against the risks covered by the branches of social security referred to in paragraph 1(a) to (h); or (b) solely as specific protection for the disabled. This Decision shall not apply to the provisions in the legislation of a Member State concerning the special non-contributory benefits, referred to in Annex II, Section II, the validity of which is confined to part of its territory. The provisions of Title II of Part II shall not, however, affect the provisions under any legislation concerning a shipowner's liability. This Decision shall not apply to social and medical assistance nor to schemes providing benefits for victims of war or of its consequences. Article 5 Declarations by the Contracting Parties on the scope of this Decision The Member States and Tunisia shall mention the legislations and schemes referred to in Article 4(1) and (2), the minimum benefits referred to in Article 55, and the benefits referred to in Articles 77 and 78, in the declarations notified and published in accordance with Article 90. Article 6 Social security conventions concluded between two or more Member States The coverage of the social security conventions linking exclusively two or more Member States, as set out in Annex III, shall be extended to the persons to whom this Decision is applicable. Article 7 Waiving of residence clauses - Effect of compulsory insurance on reimbursement of contributions 1. Save as otherwise provided for in this Decision, old-age or survivors' benefits, pensions for accidents at work or occupational diseases and invalidity cash benefits acquired under the legislation of one or more Member States shall not be subject to 12 2. 3. 1. 2. 3. any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in which the institution responsible for payment is situated. The first subparagraph shall also apply to lump-sum benefits granted in cases of remarriage of a surviving spouse who was entitled to a survivors' pension. The provisions of paragraph 1 shall apply, except as regards invalidity benefits other than those provided in instances of accidents at work or occupational diseases, to benefits acquired pursuant to the legislation of one or more Member States, when the beneficiary is a Tunisian national and resides in Tunisia, and also to the benefits acquired pursuant to Tunisian legislation, when the beneficiary is a national of a Member State and resides in the territory of that State or of any other Member State. Where, under the legislation of a Member State, reimbursement of contributions is conditional upon the person concerned having ceased to be subject to compulsory insurance, this condition shall not be considered satisfied as long as the person concerned is subject to compulsory insurance as a worker under the legislation of another Member State. Article 8 Special non-contributory benefits Notwithstanding the provisions of Article 7 and Title II of Part II, persons to whom this Decision applies shall be granted the special non-contributory cash benefits referred to in Article 4(3) exclusively in the territory of the Member State in which they reside, in accordance with the legislation of that State, provided that such benefits are listed in Annex IV. Such benefits shall be accorded by and at the expense of the institution of the place of residence. Where entitlement to a benefit covered by paragraph 1 and granted in the form of a supplement is subject, under the legislation of a Member State, to receipt of a benefit covered by Article 4(1)(a) to (h), and no such benefit is due under that legislation, any corresponding benefit accorded under the legislation of any other Member State shall be treated as a benefit accorded under the legislation of the first Member State for the purposes of granting the supplement. Where the granting of an invalidity or disability benefit covered by paragraph 1 is subject, under the legislation of a Member State, to the condition that the invalidity or disability should be diagnosed for the first time in the territory of that Member State, this condition shall be deemed to be fulfilled where such diagnosis is made for the first time in the territory of another Member State. Article 9 Revalorisation of benefits Rules for revalorisation laid down by the legislation of a Member State or of Tunisia shall apply to benefits due under that legislation taking into account the provisions of this Decision. 13 1. 2. 3. 4. Article 10 Prevention of overlapping of benefits This Decision can neither confer nor maintain the right to several benefits of the same kind for one and the same period of compulsory insurance. However, this provision shall not apply to benefits in respect of invalidity, old age, death (pensions) or occupational disease which are awarded by the institutions of two or more Member States, in accordance with the provisions of Articles 43, 45(2) and (3), 48, 55 and 56 or Article 65(1)(b). Save as otherwise provided for in this Decision, the provisions of the legislations of a Member State 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 against the beneficiary even where such benefits were acquired under the legislation of another Member State or of Tunisia or where such income was acquired in the territory of another Member State or of Tunisia. The provisions of Tunisian 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 against the beneficiary even where such benefits were acquired under the legislation of one or more Member States or where such income was acquired in the territory of one or more Member States. However, the provisions of paragraph 2 shall not be applied when the person concerned receives benefits of the same kind in respect of invalidity, old age or death (pensions) awarded: – – by the institutions of two or more Member States in accordance with Articles 48, 56 and 66 of this Decision; by a Tunisian institution, in accordance with the provisions of a social security convention concluded between Tunisia and a Member State. The provisions of the legislation of a Member State concerning reduction, suspension or withdrawal of benefit in the case of a person in receipt of invalidity benefits or anticipatory old-age benefits pursuing gainful activity may be invoked against such person even though he is pursuing his activity in the territory of another Member State or of Tunisia. The provisions of Tunisian legislation governing reduction, suspension or withdrawal of benefit in the case of a person in receipt of invalidity benefits or early old-age benefits pursuing gainful activity may be invoked against such person even though he is pursuing his activity in the territory of a Member State. 14 PART II - PROVISIONS GOVERNING APPLICATION OF MEMBER STATES' SOCIAL SECURITY SCHEMES TO TUNISIAN WORKERS AND TO THE MEMBERS OF THEIR FAMILY TITLE I DETERMINATION OF THE APPLICABLE LEGISLATION Article 11 General rule 1. 2. A worker to whom this Decision is applicable shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title. Subject to Articles 12 to 17: (a) (b) (c) a person employed in the territory of one Member State shall be subject to the legislation of that State, even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State; a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of that State; a worker to whom the legislation of a Member State ceases to be applicable, without the legislation of another Member State becoming applicable to him in accordance with one of the rules laid down in the foregoing subparagraphs or in accordance with one of the exceptions or special provisions laid down in Articles 12 to 17, shall be subject to the legislation of the Member State in whose territory he resides in accordance with the provisions of that legislation alone. Article 12 Special rules 1. Article 11(2)(a) shall apply subject to the following exceptions and circumstances: (a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another worker who has completed his term of posting. (b) If the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned is posted or the body designated by that authority has given its consent; such consent must be requested before 15 the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months. 2. A worker normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows: (a) A worker who is a member of the travelling, flying or sailing personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office in the territory of a Member State shall be subject to the legislation of that latter State. However, (i) where the said undertaking has a branch or permanent representation in the territory of a Member State other than that in which it has its registered office, a person employed by such branch or permanent representation shall be subject to the legislation of the Member State in whose territory such branch or permanent representation is situated; (ii) where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or branch or permanent representation in that territory. (b) A worker other than that referred to in (a) shall be subject: (i) (ii) to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered office or place of business in the territory of different Member States; to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity. 3. A worker employed in the territory of one Member State by an undertaking which has its registered office in the territory of another Member State and which straddles the common frontier of these States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office. Article 13 Special rules applicable to seafarers Article 11(2)(b) shall apply subject to the following exceptions and circumstances: 1. A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State, who is posted by that undertaking on board a vessel flying the flag of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State under the conditions contained in Article 12(1). 16 2. 3. A worker who does not normally pursue his activity as an employed person at sea but performs work in the territorial waters or in a port of a Member State on a vessel flying the flag of another Member State within those territorial waters or in that port, but is not a member of the crew of the vessel, shall be subject to the legislation of the first Member State. A worker employed on board a vessel flying the flag of a Member State and remunerated for such activity by an undertaking or a person whose registered office or place of business is in the territory of another Member State shall be subject to the legislation of the latter State if he is resident in its territory; the undertaking or person paying the remuneration shall be regarded as the employer for the purpose of the said legislation. Article 14 Special rules applicable to persons simultaneously pursuing activity as employed persons and as self-employed persons in the territory of different Member States A person who simultaneously pursues an activity as an employed person and an activity as a self-employed person in the territory of different Member States shall be subject to the legislation of the Member State in whose territory he pursues an activity as an employed person or, if he pursues such an activity in the territory of two or more Member States, to the legislation determined in accordance with Article 12(2) or (3). Article 15 Miscellaneous provisions 1. 2. 1. 2. A person referred to in Article 12(2) and (3) shall be treated, for the purpose of applying the legislation determined in accordance with these provisions, as if he pursued all his gainful activity or activities in the territory of the Member State concerned. The provisions of the legislation of a Member State under which a pensioner who is pursuing a gainful activity is not subject to compulsory insurance in respect of such activity shall also apply to a pensioner whose pension was acquired under the legislation of another Member State, unless the person concerned expressly asks to be so subject by applying to the institution designated by the competent authority of the first Member State. Article 16 Rules concerning voluntary insurance or optional continued insurance Articles 11 to 15 shall not apply to voluntary insurance or to optional continued insurance unless, in respect of one of the branches referred to in Article 4, only a voluntary scheme of insurance exists in a Member State. Where application of the legislations of two or more Member States entails overlapping of insurance: – under a compulsory insurance scheme and one or more voluntary or optional continued insurance schemes, the person concerned shall be subject exclusively to the compulsory insurance scheme; 17 – under two or more voluntary or optional continued insurance schemes, the person concerned may join only the voluntary or optional continued insurance scheme for which he has opted. 3. However, in respect of invalidity, old age and death (pensions), the person concerned may join the voluntary or optional continued insurance scheme of a Member State, even if he is compulsorily subject to the legislation of another Member State, to the extent that such overlapping is explicitly or implicitly admitted in the first Member State. Article 17 Exceptions to the provisions of Articles 11 to 16 Two or more Member States, the competent authorities of those States or the bodies designated by those authorities may by common agreement provide for exceptions to the provisions of Articles 11 to 16 in the interest of certain categories of persons or of certain persons. Article 18 Special rules concerning recipients of pensions due under the legislation of one or more Member States The recipient of a pension due under the legislation of a Member State or of pensions due under the legislation of several Member States who resides in the territory of another Member State may, at his request, be exempted from the legislation of the latter State, provided that he is not subject to that legislation by virtue of his pursuing a gainful activity. TITLE II - SPECIAL PROVISIONS RELATING TO THE VARIOUS CATEGORIES OF BENEFITS CHAPTER I SICKNESS AND MATERNITY Section 1 Common provisions Article 19 Aggregation of periods of insurance, employment or residence 1. 2. institution of a Member State whose legislation makes the The competent acquisition, retention or recovery of the right to benefits conditional upon the completion of periods of insurance, employment or residence shall, to the extent necessary, take account of periods of insurance, employment or residence completed under the legislation of any other Member State as though they were periods completed under the legislation which it administers. The provisions of paragraph 1 shall apply to seasonal workers, even in respect of periods prior to any break in insurance exceeding the period allowed by the legislation of the competent State, provided, however, that the person concerned has not ceased to be insured for a period exceeding four months. 18 Section 2 Workers and members of their family Article 20 1. 2. Residence in a Member State other than the competent State - General rules A worker residing in the territory of a Member State other than the competent State, who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account - where appropriate - of the provisions of Article 19, shall receive in the State in which he is resident: (a) (b) institution by the benefits in kind provided on behalf of the competent institution of the place of residence, in accordance with the provisions of the legislation administered by that institution as though he were insured with it; cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State. The provisions of paragraph 1 shall apply by analogy to members of the family who reside in the territory of a Member State other than the competent State in so far as they are not entitled to such benefits under the legislation of the State in whose territory they reside. Where the members of the family reside in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, the benefits in kind they receive shall be considered as being on behalf of the institution with which the employed or self-employed person is insured, unless the spouse or the person looking after the children pursues a gainful activity in the territory of the said Member State. Article 21 Frontier workers and members of their family - Special rules A frontier worker may also obtain benefits in the territory of the competent State. Such benefits shall be provided by the competent institution in accordance with the provisions of the legislation of that State as though the person concerned resided therein. The members of the family may receive benefits under the same conditions; however, receipt of such benefits shall, except in urgent cases, be conditional upon an agreement between the States concerned or between the competent authorities of those States or, in its absence, on prior authorisation by the competent institution. Article 22 Stay in or transfer of residence to the competent State 1. A worker referred to in Article 20(1) who is staying in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that 19 2. 3. 4. State as though he were resident there, even if he has already received benefits for the same case of sickness or maternity before his stay. Paragraph 1 shall apply by analogy to the members of the family referred to in Article 20(2). However, where the latter reside in the territory of a Member State other than the one in whose territory the employed person resides, benefits in kind shall be provided by the institution of the place of stay on behalf of the institution of the place of residence of the persons concerned. Paragraphs 1 and 2 shall not apply to frontier workers nor to the members of their families. A worker and the members of his family referred to in Article 20 who transfer their residence to the territory of the competent State shall receive benefits in accordance with the legislation of that State even if they have already received benefits for the same case of sickness or maternity before transferring their residence. Article 23 Stay outside the competent State - Return to or transfer of residence to another Member State during sickness or maternity - Need to go to another Member State in order to receive appropriate treatment 1. A worker who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account - where appropriate - of the provisions of Article 19, and: (a) whose condition necessitates immediate benefits during a stay in the territory of another Member State; or (b) who, having become entitled to benefits chargeable to the competent institution, is authorised by that institution to return to the territory of the Member State where he resides, or to transfer his residence to the territory of another Member State; or (c) who is authorised by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition, shall be entitled: (i) to benefits in kind provided on behalf of the competent institution by the in accordance with the institution of the place of stay or residence, legislation which it administers, as though he were insured with it; the length of the period during which benefits are provided shall be governed, however, by the legislation of the competent State; (ii) to cash benefits provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the 20 competent institution and the institution of the place of stay or residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State. 2. The authorisation required under 1(b) above may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or to the medical treatment being given. The authorisation required under 1(c) above may not be refused where the treatment in question is among the benefits provided for by the legislation of the Member State on whose territory the person concerned resides, and where he cannot be given such treatment within the time normally necessary for obtaining the treatment in question in the Member State of residence, taking account of his current state of health and the probable course of the disease. 3. The provisions of paragraphs 1 and 2 shall apply by analogy to the members of the worker's family. However, for the purpose of applying 1(a)(i) and (c)(i) above to the members of the family referred to in Article 20(2) who reside in the territory of a Member State other than the one in whose territory the worker resides: (a) benefits in kind shall be provided on behalf of the institution of the Member State in whose territory the members of the family are residing by the institution of the place of stay, in accordance with the legislation which it administers, as though the worker were insured there. The length of the period during which benefits are provided shall be governed, however, by the legislation of the Member State in whose territory the members of the family are residing; (b) the authorisation required under 1(c) above shall be issued by the institution of the Member State in whose territory the members of the family are residing. 4. The fact that the provisions of paragraph 1 apply to a worker shall not affect the right of his family members to benefit. Article 24 Activity pursued in a Member State other than the competent State - Stay in the State where the activity is pursued A worker referred to in Articles 12, 13, 14 and 17, as well as the members of his family accompanying him, shall be covered by the provisions of Article 23(1)(a) in respect of any condition requiring benefits during a stay in the territory of the Member State where the worker pursues his gainful activity or whose flag is flown by the vessel on which he pursues his gainful activity. Article 25 Calculation of cash benefits 1. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be founded on average earnings or on an average 21 2. 3. 1. 2. 1. 2. contributions basis, shall determine such average earnings or average contributions basis exclusively by reference to the earnings determined or contributions bases applied under the said legislation. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings shall take account exclusively of the standard earnings, or where appropriate, of the average of standard earnings for the periods completed under the said legislation. The competent institution of a Member State under whose legislation the amount of cash benefits varies with the number of family members, shall also take into account the members of the family of the person concerned who are resident in the territory of another Member State as if they were resident in the territory of the competent State. Article 26 Substantial benefits in kind Where the right of a worker or a member of his family to a prosthesis, a major appliance or other substantial benefits in kind has been recognised by the institution of a Member State before he becomes insured with the institution of another Member State, the expense of the first institution, even if they are granted after he becomes insured with the second institution. the said worker shall receive such benefits at The list of benefits to which the provisions of paragraph 1 are applicable is that compiled by the Administrative Commission on Social Security for Migrant Workers referred to in Article 80 of Regulation 1408/71 as specified in Article 1(u) of this Decision. Section 3 Unemployed persons and members of their family Article 27 The provisions of Article 20 shall apply by analogy to a wholly unemployed frontier worker who satisfies the conditions stipulated by the legislation of the competent State for entitlement to sickness insurance benefits, and also to the members of his family. Where an unemployed person, other than one referred to in paragraph 1, satisfies the conditions for entitlement to sickness and maternity benefits of the legislation of the Member State responsible for bearing the cost of unemployment benefits, taking account - where appropriate - of the provisions of Article 19, the members of his irrespective of the Member State in whose family shall receive such benefits, territory they reside or are staying. Such benefits shall be provided: (i) with regard to benefits in kind, by the institution of the place of residence or stay, in accordance with the legislation which it administers, on behalf of the competent institution of the Member State which is responsible for bearing the cost of unemployment benefits; 22 (ii) with regard to cash benefits, by the competent institution of the Member State in which is responsible for bearing the cost of unemployment benefits, accordance with the legislation which it administers. 3. Without prejudice to any provisions of the legislation of a Member State which permit an extension of the period during which sickness benefits may be granted, the period provided for in paragraph 1 may, in cases of force majeure, be extended by the competent institution within the limit fixed by the legislation administered by that institution. Section 4 Pension claimants and members of their family Article 28 Right to benefits in kind in cases of cessation of the right to benefits from the institution which was last competent 1. 2. 3. A worker, members of his family or his survivors who, during the investigation of a claim for pension, cease to be entitled to benefits in kind under the legislation of the Member State last competent, shall nevertheless receive such benefits under the following conditions: benefits in kind shall be provided in accordance with the provisions of the legislation of the Member State in whose territory the person or persons concerned reside, provided that they are entitled to such benefits under that legislation or would be entitled to them under the legislation of another Member State if they were residing in the territory of that State, taking account - where appropriate - of the provisions of Article 19. A pension claimant who is entitled to benefits in kind under the legislation of a Member State which obliges the person concerned to pay the corresponding sickness insurance contributions himself during the investigation of his pension claim shall cease to be entitled to benefits in kind at the end of the second month for which he has not paid the contributions due. Benefits in kind provided in accordance with the provisions of paragraph 1 shall be chargeable to the institution which has collected contributions in accordance with the provisions of paragraph 2; where no contributions are payable under the provisions of paragraph 2, the institution responsible for bearing the cost of the benefits in kind after awarding the pension in accordance with the provisions of Article 30 shall refund to the institution of the place of residence the amount of the benefits provided. Section 5 Pensioners and members of their family Article 29 Pensions payable under the legislation of several Member States in cases where there is a right to benefits in the country of residence A pensioner who is entitled to draw pensions under the legislation of two or more Member States, of which one is that of the Member State in whose territory he resides, and who is entitled to benefits under the legislation of the latter Member State, taking account - where 23 appropriate - of the provisions of Article 19 and Annex VI, shall, together with the members of his family, receive such benefits from the institution of the place of residence and at the expense of that institution as though the person concerned were a pensioner whose pension was payable solely under the legislation of the latter Member State. Article 30 Pensions payable under the legislation of one or more States in cases where there is no right to benefits in the country of residence 1. A pensioner who is entitled to a pension under the legislation of one Member State or to pensions under the legislations of two or more Member States and who is not entitled to benefits under the legislation of the Member State in whose territory he resides shall, nevertheless, receive such benefits for himself and for the members of his family, in so far as he would, taking account - where appropriate - of the provisions of Article 19 and Annex VI, be entitled thereto under the legislation of the Member State or of at least one of the Member States competent in respect of pensions if he were resident in the territory of the State concerned. Benefit shall be provided under the following conditions: (a) (b) benefits in kind shall be provided on behalf of the institution referred to in paragraph 2 by the institution of the place of residence as though the person concerned were a pensioner under the legislation of the State in whose territory he resides and were entitled to such benefits; cash benefits shall, where appropriate, be provided by the competent institution as determined by the provisions of paragraph 2, in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of residence, such benefits may be provided by the latter institution on behalf of the former, in accordance with the legislation of the competent State. 2. In the cases covered by paragraph 1, the cost of benefits in kind shall be borne by the institution determined according to the following rules: (a) where the pensioner is entitled to the said benefits under the legislation of a single Member State, the cost shall be borne by the competent institution of that State; (b) where the pensioner is entitled to the said benefits under the legislation of two or more Member States, the cost thereof shall be borne by the competent institution of the Member State to whose legislation the pensioner has been subject for the longest period of time; should the application of this rule result in several institutions being responsible for the cost of benefits, the cost shall be borne by whichever of those institutions administers the legislation to which the pensioner was last subject. Article 31 Pensions payable under the legislation of one or more Member States other than the country of residence in cases where there is a right to benefits in the latter country 24 Where a pensioner entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, resides in the territory of a Member State under whose legislation the right to receive benefits in kind is not subject to conditions of insurance or employment, nor any pension is payable, the cost of benefits in kind provided to him and to members of his family shall be borne by the institution of one of the Member States competent in respect of pensions, determined according to the rules laid down in Article 30(2), to the extent that the pensioner and members of his family would have been entitled to such benefits under the legislation administered by the said institution if they resided in the territory of the Member State where that institution is situated. Article 32 Residence of members of the family in a State other than the one in which the pensioner resides - Transfer of residence to the State where the pensioner resides 1. Members of the family of a pensioner entitled to a pension under the legislation of one Member State or to pensions under the legislations of two or more Member States who reside in the territory of a Member State other than the one in which the pensioner resides shall, where he is entitled to such benefits under the legislation of one Member State, receive benefits as though the pensioner were resident in the same territory as themselves. Benefits shall be provided under the following conditions: (a) (b) benefits in kind shall be provided by the institution of the place of residence of the members of the family, in accordance with the legislation which that institution administers, the cost being borne by the institution of the pensioner's place of residence; cash benefits shall, where appropriate, be provided by the competent institution determined under the provisions of Article 29 or 30(2), in accordance with the legislation which it administers. However, by agreement between the institution and the institution of the place of residence of the competent members of the family, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State. 2. The members of the family referred to in paragraph 1 who transfer their residence to the territory of the Member State where the pensioner resides, shall receive: (a) (b) benefits in kind under the provisions of the legislation of that State, even if they have already received benefits for the same case of sickness or maternity before transferring their residence; cash benefits provided, where appropriate, by the competent institution determined by the provisions of Article 29 or 30(2), in accordance with the legislation which it administers. However, by agreement between the institution and the institution of the place of residence of the competent pensioner, such benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State. Article 33 25 The provisions of Article 26 shall apply by analogy to pensioners. Substantial benefits in kind Article 34 Stay of pensioner and/or members of his family in a State other than the State in which they reside A pensioner entitled to a pension or pensions under the legislation of one Member State or to pensions under the legislations of two or more Member States who is entitled to benefits under the legislation of one of those Member States shall, together with members of his family who are staying in the territory of a Member State other than the one in which they reside, receive: (a) (b) 1. 2. 1. 2. benefits in kind provided by the institution of the place of stay, in accordance with the legislation which it administers, the cost being borne by the institution of the pensioner's place of residence; cash benefits provided, where appropriate, by the competent institution determined by the provisions of Article 29 or 30(2), in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay, these benefits may be provided by the latter institution on behalf of the former, in accordance with the provisions of the legislation of the competent State. Article 35 Contributions payable by pensioners The institution of a Member State which is responsible for payment of a pension and which administers legislation providing for deductions from pensions in respect of contributions for sickness and maternity benefit cover shall be authorised to make such deductions, calculated in accordance with the said legislation, from the pension payable by it, to the extent that the cost of the benefits provided under Articles 29, 30, 31, 32 and 34 is borne by an institution of the said Member State. Where, in the cases referred to in Article 31, a pensioner is subject, by virtue of his residence, to the payment of contributions or similar deductions for sickness and maternity benefit cover under the legislation of the Member State in whose territory he resides, such contributions shall not be payable. Article 36 General provisions For the purposes of Articles 30, 31, 32 and 34, a pensioner who is in receipt of two or more pensions due under the legislation of a single Member State shall be regarded as a pensioner drawing a pension under the legislation of one Member State, within the meaning of these provisions. Articles 29 to 35 shall not apply to a pensioner drawing a pension nor to members of his family entitled to benefits under the legislation of a Member State as a result of pursuing gainful activity. In such cases the person concerned shall, for the purposes 26 of applying this Chapter, be regarded as an employed person or as a member of an employed person's family. Section 6 Miscellaneous provisions Article 37 Scheme applicable where there are a number of schemes in the country of residence or stay - Previous illness - Maximum period during which benefits are granted 1. 2. 3. 1. 2. 3. Subject to paragraph 2, where the legislation of the country of stay or residence contains several sickness or maternity insurance schemes, the provisions applicable under Articles 20, 22(1), 23, 27, 28, 30(1), 32(1) or 34 shall be those of the scheme covering manual workers in the steel industry. Where, however, the said legislation includes a special scheme for workers in mines and similar undertakings, the provisions of that scheme shall apply to the said category of workers and members of their family, provided the institution of the place of stay or residence to which application is made is competent to administer that scheme. Where, under the legislation of a Member State, the granting of benefits is made conditional on the origin of the illness, that condition shall apply neither to workers nor to the members of their family to whom this Decision applies, regardless of the Member State in whose territory they reside. Where the legislation of a Member State fixes a maximum period for the granting of benefits, the institution which administers that legislation may, where appropriate, take account of the period during which the benefits have already been provided by the institution of another Member State for the same case of sickness or maternity. Section 7 Reimbursements between institutions Article 38 Benefits in kind provided in accordance with the provisions of this Chapter by the institution of one Member State on behalf of the institution of another Member State shall be fully refunded. The reimbursements referred to in paragraph 1 shall be determined and made in accordance with the procedure laid down by the Decision referred to in Article 91, either on proof of actual expenditure or via lump-sum payments. In the latter case, the lump-sum payments shall be such as to ensure that the refund is as close as possible to actual expenditure. Two or more Member States, or the competent authorities of such States, may provide for other methods of reimbursement or waive reimbursement between the institutions coming under their jurisdiction. 27 CHAPTER 2 INVALIDITY Section 1 Workers subject only to legislations under which the amount of invalidity benefits is independent of the duration of the periods of insurance Article 39 General provisions 1. 2. legislations according to which the amount of A worker who has been successively or alternately subject to the legislations of two or more Member States and who has completed periods of insurance exclusively under invalidity benefits is independent of the duration of periods of insurance shall receive benefits in accordance with Article 41. This Article shall not affect pension increases or supplements in respect of children, granted in accordance with Chapter 7. Annex V, Part A, lists legislation of the kind mentioned in paragraph 1 in force in the territory of each of the Member States concerned. Article 40 Consideration of periods of insurance or of residence completed under the legislations to which a worker was subject for the acquisition, retention or recovery of the right to benefits 1. 2. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraphs 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, to the extent necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general or a special scheme. For that purpose, it shall take account of such periods as if they had been completed under the legislation it administers. Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific job, periods completed under the legislations of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same job. If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of such benefits, such periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject to the condition that the person concerned has been affiliated to one or other of such schemes. 28 Article 41 Award of benefits 1. 2. 3. 4. 5. The institution of a Member State whose legislation was applicable at the time when incapacity for work followed by invalidity occurred shall determine, in accordance with the provisions of that legislation, whether the person concerned satisfies the conditions for entitlement to benefits, taking account - where appropriate - of Article 40. A person who satisfies the conditions referred to in paragraph 1 shall receive the benefits only from the said institution, in accordance with the legislation which it administers. 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 State taking account - where appropriate - of Article 40. If the legislation referred to in paragraphs 2 or 3 provides that the amount of the benefits shall be determined taking into account the existence of members of the institution shall also take into the competent family other than the children, consideration those members of the family of the person concerned who are residing in the territory of another Member State, as if they were residing in the territory of the competent State. If the legislation referred to in paragraphs 2 or 3 lays down provisions for the reduction, suspension or withdrawal of benefits in the event of overlapping with benefits of a different kind within the meaning of Article 49(2) or with other income, Articles 49(3) and 51(5) shall apply by analogy. Section 2 Workers subject either only to legislations under which the amount of invalidity benefit depends on the duration of periods of insurance or of residence, or to legislations of that type and of the type referred to in Section 1 Article 42 General provisions 1. 2. A worker who has been successively or alternately subject to the legislations of two or more Member States, of which at least one is not of the type referred to in Article 39(1), shall receive benefits under the provisions of Chapter 3, which shall apply by analogy, taking into account the provisions of paragraph 4. However, a worker who suffers incapacity for work leading to invalidity while subject to a legislation listed in Annex V, Part A, shall receive benefits in accordance with the provisions of Article 39(1) on the following conditions: – that he satisfies the conditions of that legislation or other legislations of the same type, taking account - where appropriate - of Article 40, but without the need for recourse to periods of insurance completed under legislations not listed in Annex V, Part A, 29 and – and – that he does not satisfy the conditions required for the acquisition of the right to invalidity benefits under a legislation not listed in Annex V, Part A, that he does not assert any claims to old-age benefits, account being taken of the second sentence of Article 46(2). 3. (a) For the purpose of determining the right to benefits under the legislation of a Member State, listed in Annex V, Part A, which makes the granting of invalidity benefits conditional upon the person concerned having received cash sickness benefits or having been incapable for work during a specified period, where a worker who has been subject to that legislation suffers incapacity for work followed by invalidity while subject to the legislation of another Member State, account shall be taken of the following, without prejudice to Article 39(1): (i) (ii) of any period during which, in respect of such incapacity for work, he received, under the legislation of the second Member State, cash sickness benefits, or, in lieu thereof, continued to receive his wage; of any period during which, in respect of the invalidity which followed the said incapacity for work, he received, under the legislation of the second Member State, benefits within the meaning of this Chapter 2 and the following Chapter 3, as though it were a period during which cash sickness benefits had been accorded to him under the legislation of the first Member State or during which he was incapable of working within the meaning of that legislation. (b) The right to invalidity benefits under the legislation of the first Member State shall be acquired either upon expiry of the preliminary period of compensation for sickness, as required by that legislation, or upon expiry of the preliminary period of incapacity of work as required by that legislation, but not before: (i) or (ii) the date of acquisition of the right subparagraph (a)(ii) under the legislation of the second Member State, to invalidity benefits referred to in the day following the last day on which the person concerned is entitled to cash sickness benefits under the legislation of the second Member State. 4. A decision taken by an institution of a Member State concerning the degree of invalidity of a claimant shall be binding on the institution of any other Member State concerned, provided that the concordance between the legislation of these States on conditions relating to the degree of invalidity is acknowledged in Annex V of Regulation 1408/71 as specified in Article 1(u) of the Decision. 30 Section 3 Aggravation of invalidity Article 43 1. In the event of aggravation of an invalidity for which a worker is receiving benefits under the legislation of a single Member State, the following provisions shall apply: (a) (b) (c) if the person concerned has not been subject to the legislation of another Member State since receiving the benefits, the competent institution of the first State shall be bound to grant the benefits, taking the aggravation into account, in accordance with the legislation which it administers; if the person concerned has been subject to the legislation of one or more of the other Member States since receiving the benefits, the benefits shall be granted to him, taking the aggravation into account, in accordance with Articles 39(1) or 40(1) or (2), as appropriate; if the total amount of the benefit or benefits due under subparagraph (b) is lower than the amount of the benefit which the person concerned was receiving at the expense of the institution previously liable for payment, such institution shall be obliged to pay him a supplement equal to the difference between the two amounts; (d) if, in the case referred to in subparagraph (b), the institution responsible for the initial incapacity is a Dutch institution, and if: (i) and (ii) and (iii) the illness which caused the aggravation is the same as the one which gave rise to the granting of benefits under Dutch legislation, the said illness is an occupational disease within the meaning of the legislation of the Member State to which the person concerned was last subject and entitles him to payment of the supplement referred to in Article 65(1)(b), the legislation or legislations to which the person concerned has been subject since receiving benefits is or are listed in Annex V, Part A, the Dutch institution shall continue to provide the initial benefit after the aggravation occurs, and the benefit due under the legislation of the last Member State to which the person concerned was subject shall be reduced by the amount of the Dutch benefit; (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 shall be bound to grant the benefits, in accordance with the provisions of the legislation of that State, taking into account the aggravation and, where appropriate, Article 40. 31 2. In the event of aggravation of an invalidity for which a worker is receiving benefits under the legislation of two or more Member States, the benefits shall be granted to him, taking the aggravation into account, in accordance with Article 42(1). Section 4 Resumption of provision of benefits after suspension or withdrawal - Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 41 Article 44 Determination of the institution responsible for providing benefits when provision of invalidity benefits is resumed 1. 2. If provision of benefits is to be resumed after suspension, such provision shall, without prejudice to Article 45, be the responsibility of the institution or institutions which were responsible for provision of the benefits at the time of their suspension. If, after withdrawal of benefits, the condition of the person concerned warrants the granting of further benefits, they shall be granted in accordance with the provisions of Articles 39(1) or 42(1) or (2), as appropriate. Conversion of invalidity benefits into old-age benefits - Recalculation of benefits granted under Article 41 Article 45 1. 2. 3. Invalidity benefits shall, where appropriate, be converted into old-age benefits under the conditions laid down by the legislation or legislations under which they were accorded and in keeping with the provisions of Chapter 3. Where a person receiving invalidity benefits can establish a claim to old-age benefits under the legislation of one or more of the Member States, in accordance with Article 54, any institution which is responsible for providing invalidity benefits under the legislation of a Member State shall continue to provide such a person with the invalidity benefits to which he is entitled under the legislation which it administers until the provisions of paragraph 1 become applicable as regards that institution or, if not, as long as the person concerned fulfils the conditions for such benefits. Where invalidity benefits granted in accordance with Article 41 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 the legislation or legislations of one or more of the other Member States to receive entitlement to those benefits, the person concerned shall receive, from that or those Member States, as from the date of the conversion, invalidity benefits granted in accordance with Chapter 3 as if that Chapter had been applicable at the time when his incapacity for the person concerned satisfies the work followed by invalidity occurred, until qualifying conditions for old-age benefits laid down by the other national legislation or legislations concerned or, where such conversion is not provided for, as long as he has a right to invalidity benefits under the legislation or legislations concerned. 4. The invalidity benefits provided under Article 39 shall be reviewed pursuant to Chapter 3 as soon as the beneficiary satisfies the qualifying conditions for invalidity 32 benefits laid down by a legislation not listed in Annex V, Part A, or as soon as he receives old-age benefits under the legislation of another Member State. CHAPTER 3 OLD AGE AND DEATH (PENSIONS) Article 46 General provisions for the award of benefits where a person has been subject to the legislation of two or more Member States 1. 2. 3. The rights to benefits of a worker who has been subject to the legislation of two or more Member States, or of his survivors, shall be determined in accordance with the provisions of this Chapter. Save as otherwise provided for in Article 54, the processing of a claim for an award submitted by an employed person shall have regard to all the legislations to which the person concerned has been subject and shall be undertaken once he submits a claim. Exception shall be made to this rule if the person concerned expressly asks for postponement of the award of old-age benefits to which he would be entitled under the legislation of one or more of the Member States. This Chapter shall not apply to increases in pensions or to supplements for pensions in respect of children or to orphan's pensions granted in accordance with the provisions of Chapter 7. Article 47 Consideration of periods of insurance or of residence completed under the legislations to which a worker was subject for the acquisition, retention or recovery of the right to benefits 1. 2. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits, under a scheme which is not a special scheme within the meaning of paragraphs 2 or 3, subject to the completion of periods of insurance or of residence, the competent institution of that Member State shall take account, to the extent necessary, of the periods of insurance or of residence completed under the legislation of any other Member State, be it under a general or a special scheme. For that purpose, it shall take account of those periods as if they had been completed under the legislation it administers. Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific job, periods completed under the legislations of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing that, in the same occupation or, where appropriate, in the same job. If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of such benefits, such periods shall be taken into account for the granting of the benefits under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, subject the person concerned has been affiliated to one or other of such schemes. to the condition that 33 3. 4. 1. The periods of insurance completed under a special scheme of a Member State shall be taken into account under the general scheme or, failing that, under the scheme applicable to manual or clerical workers, as the case may be, of another Member State for the acquisition, retention or recovery of the right to benefits, subject to the condition that the person concerned has been affiliated to one or other of such schemes, even if such periods have already been taken into account in the latter State under a scheme referred to in paragraph 2 or in the first sentence of paragraph 3. Where the legislation of a Member State makes the acquisition, retention or recovery of the right to benefits conditional upon the person concerned being insured at the time of the materialisation of the risk, this condition shall be regarded as having been satisfied in the event of insurance under the legislation of another Member State, in accordance with the procedures provided for in Annex VI for each Member State concerned. Article 48 Award of benefits Where the conditions required by the legislation of a Member State for entitlement to benefits have been satisfied without having to apply Article 47 or Article 42(3), the following rules shall apply: (a) the competent institution shall calculate the amount of the benefit that would be due: (i) firstly, only under the legislation which it administers; (ii) secondly, pursuant to paragraph 2; (b) the competent institution may, however, waive the calculation to be carried out in accordance with (a)(ii) if the result of that calculation, apart from differences arising from the use of round figures, is equal to or lower than the result of the calculation carried out in accordance with (a)(i), in so far as that institution does not apply any legislation containing rules against overlapping as referred to in Articles 50 and 51 or if the aforementioned institution applies a legislation containing rules against overlapping in the case referred to in Article 51, provided that the said legislation lays down that benefits of a different kind shall be taken into consideration only on the basis of the relation of the periods of insurance or of residence completed under that legislation alone to the periods of insurance or of residence required by that legislation in order to qualify for full benefit entitlement. Annex V, Part B, lists for each Member State concerned the cases where the two calculations would lead to such a result. 2. Where the conditions required by the legislation of a Member State for entitlement to benefits are satisfied only after application of Article 47 and or Article 42(3), the following rules shall apply: (a) the competent institution shall calculate the theoretical amount of the benefit to which the person concerned could lay claim if all the periods of insurance and/or of residence, completed under the legislation of the Member States to 34 which the employed or self-employed person was subject, had been completed in the State in question under the legislation which it administers on the date of the award of the benefit. If, under this legislation, the amount of the benefit is independent of the duration of the periods completed, the said amount shall be regarded as being the theoretical amount referred to in this paragraph (a); (b) the competent institution shall subsequently determine the actual amount of the benefit on the basis of the theoretical amount referred to in (a) in accordance with the ratio of the duration of the periods of insurance or of residence completed before the materialisation of the risk under the legislation which it administers to the total duration of the periods of insurance and of residence completed before the materialisation of the risk under the legislations of all the Member States concerned. 3. The person concerned shall be entitled to the highest amount calculated in accordance with paragraphs 1 and 2 from the competent institution of each Member State without prejudice - as the case may be - to any application of the provisions concerning reduction, suspension or withdrawal provided for by the legislation under which such benefit is due. Where that is the case, the comparison to be carried out shall relate to the amounts determined after the application of the said rules. Article 49 General provisions relating to the reduction, suspension or withdrawal rules applicable to benefits in respect of invalidity, old age or survivors under the legislations of the Member States 1. 2. 3. For the purposes of the Chapter, overlapping of benefits of the same kind shall have the following meaning: all overlapping of benefits in respect of invalidity, old age and survivors calculated or provided on the basis of periods of insurance and/or residence completed by one and the same person. For the purposes of this Chapter, overlapping of benefits of different kinds means all overlapping of benefits that cannot be regarded as being of the same kind within the meaning of paragraph 1. The following rules shall be applicable for the application of the provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State in the event of overlapping of a benefit in respect of invalidity, old age or survivors with a benefit of the same kind or a benefit of a different kind or with other income: (a) (b) account shall be taken of the benefits acquired under the legislation of another Member State or of other income acquired in another Member State only where the legislation of the first Member State provides for benefits or income acquired abroad to be taken into account; account shall be taken of the amount of benefits to be granted by another Member State before deduction of taxes, social security contributions and other individual deductions; 35 (c) no account shall be taken of the amount of benefits acquired under the legislation of another Member State which are awarded on the basis of voluntary or continued optional insurance; (d) where the provisions on reduction, suspension or withdrawal are applicable under the legislation of only one Member State on account of the fact that the person concerned receives benefits of a similar or different kind due under the legislation of other Member States or other income acquired in the territory of other Member States, the benefit due under the legislation of the first Member State may be reduced only within the limit of the amount of the benefits due under the legislation or the income acquired in the territory of the other Member States. Article 50 Special provisions applicable in the event of overlapping of benefits of the same kind payable under the legislation of two or more Member States 1. 2. The provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State shall not be applicable to a benefit calculated in accordance with Article 48(2). The provisions on reduction, suspension or withdrawal laid down by the legislation of a Member State shall apply to a benefit calculated in accordance with Article 47(1)(a)(i) only if the benefit concerned is: (a) or (b) either a benefit, which is referred to in Annex V, Part C, the amount of which does not depend on the length of the periods of insurance or residence completed, a benefit, the amount of which is determined on the basis of a credited period deemed to have been completed between the date on which the risk materialised and a later date. In the latter case, the said provisions shall apply in the case of overlapping of such a benefit: (i) either with a benefit of the same kind, except where an agreement has been concluded between two or more Member States providing that one and the same credited period may not be taken into account two or more times; (ii) or with a benefit of the type referred to in (a). The benefits referred to in (a) and (b) and the agreements are given in Annex V, Part C. 36 Article 51 Special provisions applicable in the event of overlapping of one or more benefits referred to in Article 49(1) with one or more benefits of a different kind or with other income, where two or more Member States are concerned 1. 2. 3. 4. 5. 1. If the receipt of benefits of a different kind or other income entails the reduction, suspension or withdrawal of two or more benefits referred to in Article 48(1)(a)(i), the amounts which would not be paid in strict application of the provisions concerning reduction, suspension or withdrawal set out under the legislation of the Member States concerned shall be divided by the number of benefits subject to reduction, suspension or withdrawal. Where the benefit in question is calculated in accordance with Article 48(2), the benefit or benefits of a different kind from the other Member States or other 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 withdrawal shall be taken into account in proportion to the periods of insurance and/or residence referred to in Article 48(2)(b) and used for the calculation of the said benefit. If the receipt of benefits of a different kind or of other income entails the reduction, suspension or withdrawal of one or more benefits referred to in Article 48(1)(a)(i) and of one or more benefits referred to in Article 48(2), the following rules shall apply: (a) in the case of a benefit or benefits referred to in Article 48(1)(a)(i), the amounts which would not be paid in strict application of the provisions concerning reduction, suspension or withdrawal set out under the legislation of the Member States concerned shall be divided by the number of benefits subject to reduction, suspension or withdrawal; (b) in the case of a benefit or benefits calculated in accordance with Article 48(2), the reduction suspension or withdrawal shall be carried out in accordance with paragraph 2. for Where, in the case referred to in paragraphs 1 and 3(a), the legislation of a Member State provides that, the application of provisions concerning reduction, suspension or withdrawal, account shall be taken of benefits of a different kind and/or other income and all other elements in proportion to the periods of insurance referred to in Article 48(2)(b), the division provided for in the said paragraphs shall not apply in respect of that Member State. All the abovementioned provisions shall apply by analogy where the legislation of one or more Member States provides that the right to a benefit cannot be acquired in the case where the person concerned is in receipt of a benefit of a different kind due under the legislation of another Member State or of other income. Article 52 Additional provisions for the calculation of benefits the calculation of For Article 48(2), the following rules shall apply: the theoretical and pro rata amounts referred to in 37 (a) where the total length of the periods of insurance and of residence completed before the risk materialised under the legislations of all the Member States concerned is longer than the maximum period required by the legislation of one of those States for receipt of full benefit, the competent institution of that State shall take into consideration this maximum period instead of the total length of the periods completed; this method of calculation must not result in the imposition on that institution of the cost of a benefit greater than the full benefit provided for by the legislation which it administers. This provision shall not apply to benefits, the amount of which does not depend on the length of insurance; (b) the procedure for taking account of overlapping periods is laid down in the implementing decision referred to in Article 91; (c) where, under the legislation of a Member State, benefits are calculated on the basis of average earnings, an average contribution, an average increase or on the relation which existed, during the periods of insurance, between the claimant's gross earnings and the average gross earnings of all insured persons other than apprentices, the competent institution of that State shall determine such average or proportional figures solely on the basis of the periods of insurance completed under the legislation of the said State or of the gross earnings received by the person concerned during those periods only; (d) where, under the legislation of a Member State, benefits are calculated on the basis of the amount of earnings, contributions or increases, the competent institution of that State shall determine the earnings, contributions or increases to be taken into account in respect of the periods of insurance or residence completed under the legislation of other Member States on the basis of the average of the earnings, contributions or increases recorded in respect of the periods of insurance completed under the legislation which it administers; (e) where, under the legislation of a Member State, benefits are calculated on the basis of earnings or a fixed amount, the competent institution of that State shall consider the earnings or the fixed amount to be taken into account by it in respect of periods of insurance or residence completed under legislations of other Member States as being equal to the earnings or fixed amount or, where appropriate, to the average of the earnings or fixed amounts corresponding to the periods of insurance completed under the legislation which it administers; (f) where, under the legislation of a Member State, benefits are calculated for certain periods on the basis of the amount of earnings and for other periods on the basis of earnings or a fixed amount, the competent institution of that State shall, in respect of periods of insurance or residence completed under the legislations of other Member States, take into account the earnings or amounts determined in accordance with the provisions of subparagraphs (d) or (e) or the average of the said earnings or amounts, as the case may be; where, for all the institution, periods completed under the legislation administered by that benefits are calculated on the basis of earnings or fixed amount, it shall consider that the earnings to be taken into account by it in respect of the periods of insurance or residence completed under the legislations of other Member States as being equal to the credited earnings corresponding to such earnings or fixed amount; 38 2. 3. 1. 2. 3. (g) where, under the legislation of a Member State, benefits are calculated on an institution shall determine that average contributions basis, the competent average basis by reference only to those periods of insurance completed under the legislation of the said State. The provisions of the legislation of a Member State concerning the revalorisation of the factors taken into account for the calculation of benefits shall apply, as appropriate, to the factors to be taken into account by the competent institution of that State, in accordance with paragraph 1, in respect of the periods of insurance or residence completed under the legislation of other Member States. If, under the legislation of a Member State, the amount of benefits is determined taking into account the existence of members of the family other than children, the competent institution of that State shall also take into consideration those members of the family of the person concerned who are residing in the territory of another Member State as if they were residing in the territory of the competent State. Article 53 Periods of insurance or of residence of less than one year Notwithstanding Article 48(2), the institution of a Member State shall not be required to award benefits in respect of periods completed under the legislation it administers and which are to be taken into account when the risk materialises if: – the duration of the said periods does not amount to one year, and – taking only these periods into consideration, no right to benefit is acquired by virtue of the provisions of that legislation. The competent institution of each of the other Member States concerned shall take into account the periods referred to in paragraph 1, for the purposes of applying Article 47(2), excepting subparagraph (b). If the effect of applying paragraph 1 would be to relieve all the institutions of the Member States concerned of their obligations, benefits shall be awarded exclusively under the legislation of the last of those States whose conditions are satisfied, as if all in the periods of insurance and residence completed and taken into account accordance with Article 47(1) to (4) had been completed under the legislation of that State. Article 54 Calculation of benefits where the person concerned does not simultaneously satisfy the conditions laid down by all the legislations under which periods of insurance or of residence have been completed or when he has expressly requested postponement of the award of old-age benefits 1. If, at a given time, the person concerned does not satisfy the conditions laid down for the provision of benefits by all the legislations of the Member States to which he has been subject, taking into account - where appropriate - Article 47 and/or Article 39 42(3), but satisfies the conditions or one or more of them only, the following provisions shall apply: (a) each of the competent institutions administering a legislation whose conditions are satisfied shall calculate the amount of the benefit due, in accordance with Article 48; (b) however: (i) (ii) if the person concerned satisfies the conditions of at least two legislations without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, such periods shall not be taken into account for the purposes of Article 48(2) unless taking account of the said periods makes it possible to determine a higher amount of benefit; if the person concerned satisfies the conditions of one legislation only without having recourse to periods of insurance or residence completed under the legislations whose conditions are not satisfied, the amount of the benefit due shall, in accordance with Article 48(1)(a)(i), be calculated only in accordance with the provisions of the legislation whose conditions are satisfied, taking account of the periods completed under that legislation only, unless taking account of the periods completed under the legislations whose conditions are not satisfied makes it possible, in accordance with Article 48(1)(a)(ii), to determine a higher amount of benefit. The provisions of this paragraph shall apply by analogy where the person concerned has expressly requested postponement of in accordance with the second sentence of Article 46(2). the award of old-age benefits, The benefit or benefits awarded under one or more of the legislations in question, in the case referred to in paragraph 1, shall be recalculated automatically in accordance with Article 48, as and when the conditions required by one or more of the other legislations to which the person concerned has been subject are satisfied, taking into account, where appropriate, Article 47 and taking into account once again, where appropriate, paragraph 1. This paragraph shall apply by analogy where a person requests the award of old-age benefits acquired under the legislation of one or more Member States which had until than been postponed in accordance with the second sentence of Article 46(2). A recalculation shall automatically be made in accordance with paragraph 1, without prejudice to Article 42(2), where the conditions required by one or more of the legislations concerned are no longer satisfied. 2. 3. Article 55 Award of a supplement where the total of benefits payable under the legislations of the various Member States does not amount to the minimum laid down by the legislation of whichever of those States in whose territory the recipient resides A recipient of benefits to whom this Chapter applies may not, in the State in whose territory he resides and under whose legislation a benefit is payable to him, be awarded a benefit which 40 is less than the minimum benefit fixed by that legislation for a period of insurance or residence equal to all the periods taken into account for the payment in accordance with the preceding Articles. The competent if necessary, pay him throughout the period of his residence in its territory a supplement equal to the difference between the total of the benefits payable under this Chapter and the amount of the minimum benefit. institution of that State shall, Article 56 Revalorisation and recalculation of benefits 1. 2. If, by reason of an increase in the cost of living or changes in the level of wages or salaries or other reasons for adjustment, the benefits of the States concerned are altered by a fixed percentage or amount, such percentage or amount must be applied directly to the benefits determined under Article 48, without the need for a recalculation in accordance with that Article. On the other hand, if the method of determining benefits or the rules for calculating benefits should be altered, a recalculation shall be carried out in accordance with Article 48. CHAPTER 4 ACCIDENTS AT WORK AND OCCUPATIONAL DISEASES Section 1 Entitlement to benefits Article 57 Residence in a Member State other than the competent State - General rules A worker who sustains an accident at work or contracts an occupational disease, and who is residing in the territory of a Member State other than the competent State, shall receive in the State in which he is residing: (a) (b) benefits in kind, provided on behalf of the competent institution by the institution of his place of residence in accordance with the legislation which it administers as though he were insured with it; cash benefits, provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent those benefits may be institution and the institution of the place of residence, provided by the latter institution on behalf of the former in accordance with the legislation of the competent State. Article 58 Frontier workers - Special rule A frontier worker may also obtain benefits in the territory of the competent State. Such benefits shall be provided by the competent institution in accordance with the provisions of the legislation of that State, as if the person concerned were residing there. 41 Article 59 Stay in or transfer of residence to the competent State 1. 2. A worker covered by Article 57 who is staying in the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State, even if he has already received benefits before his stay. This provision shall not, however, apply to frontier workers. A worker covered by Article 57 who transfers his place of residence to the territory of the competent State shall receive benefits in accordance with the provisions of the legislation of that State, even if he has already received benefits before transferring his residence. Article 60 Stay outside the competent State - Return to or transfer of residence to another Member State after sustaining an accident or contracting an occupational disease - Need to go to another Member State in order to receive appropriate treatment 1. A worker who falls victim to an accident at work or an occupational disease: (a) who is staying in the territory of a Member State other than the competent State; or (b) who, after having become entitled to benefits chargeable to the competent institution, is authorised by that institution to return to the territory of the Member State where he is resident, or to transfer his place of residence to the territory of another Member State; or (c) who is authorised by the competent institution to go to the territory of another Member State in order to receive there the treatment appropriate to his condition; shall be entitled: (i) (ii) to benefits in kind, provided on behalf of the competent institution by the institution of the place of stay or residence in accordance with the legislation which it administers as though he were insured with it, the period during which benefits are provided shall, however, be governed by the legislation of the competent State; to cash benefits, provided by the competent institution in accordance with the legislation which it administers. However, by agreement between the competent institution and the institution of the place of stay or residence, those benefits may be provided by the latter institution on behalf of the former institution in accordance with the legislation of the competent State. 42 2. The authorisation required under paragraph 1(b) may be refused only if it is established that movement of the person concerned would be prejudicial to his state of health or to the medical treatment being given. The authorisation required under paragraph 1(c) may not be refused where the treatment in question cannot be given to the person concerned in the territory of the Member State in which he resides. Article 61 Accidents while travelling An accident while travelling which occurs in the territory of a Member State other than the competent State shall be deemed to have occurred in the territory of the competent State. Benefits for an occupational disease where the person involved has been exposed to the same risk in several Member States Article 62 1. 2. 3. 4. 5. When a person who has fallen victim to an occupational disease has, under the legislation of two or more Member States, pursued an activity which by its nature is likely to cause that disease, the benefits that he or his survivors may claim shall be awarded exclusively under the legislation of the last of the said States whose conditions are satisfied, taking into account, where appropriate, paragraphs 2 to 5. If, under the legislation of a Member State, the granting of benefits in respect of an occupational disease is subject to the condition that the disease in question was first diagnosed within its territory, such condition shall be deemed to be satisfied if the disease was first diagnosed in the territory of another Member State. If, under the legislation of a Member State, the granting of benefits in respect of an occupational disease is subject to the condition that the disease in question was diagnosed within a specific time limit following cessation of the last activity which was likely to cause such a disease, the competent institution of that State, when checking the time at which such activity was pursued, shall take into account, to the extent necessary, similar activities pursued under the legislation of any other Member State, as if they had been pursued under the legislation of the first State. If, under the legislation of a Member State, the granting of benefits in respect of an occupational disease is subject to the condition that an activity likely to cause the disease in question was pursued for a certain length of time, the competent institution of that State shall take into account, to the extent necessary, periods during which such activity was pursued under the legislation of any other Member State, as if it had been pursued under the legislation of the first State. In cases of sclerogenic pneumoconiosis, the cost of cash benefits, including pensions, shall be divided among the competent institutions of the Member States in whose territory the person concerned pursued an activity likely to cause the disease. This division shall be carried out on the basis of the ratio between the length of the periods of old-age insurance or residence referred to in Article 47(1) completed under the legislation of each of the States and the total length of the periods of old- 43 age insurance or residence completed under the legislation of all the States at the dates on which the benefits commenced. The Association Council shall determine, by unanimity, the occupational diseases to which the provisions of paragraph 5 apply. Article 63 Calculation of cash benefits The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on average earnings shall determine such average earnings exclusively by reference to earnings confirmed as having been paid during the periods completed under the said legislation. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings shall take account exclusively of the standard earnings, or where appropriate, of the average of standard earnings for the periods completed under the said legislation. The competent institution of a Member State whose legislation provides that the amount of cash benefits shall vary with the number of members in the family shall take into account also the members of the family of the person concerned who are residing in the territory of another Member State, as if they were residing in the territory of the competent Member State. Article 64 Costs of transporting a victim The competent institution of a Member State whose legislation provides for meeting the costs of transporting a victim, either to his place of residence or to a hospital, shall meet such costs to the corresponding place in the territory of another Member State where the person resides, provided that institution has given prior authorisation for such transport, duly taking into account the reasons justifying it. Such authorisation shall not be required in the case of a frontier worker. that The competent institution of a Member State whose legislation provides for the costs of transporting the body of a victim to the place of burial shall, in accordance with the legislation which it administers, meet such costs to the corresponding place in the territory of another Member State where the victim was residing at the time of the accident. Section 2 Aggravation of an occupational disease for which compensation has been awarded Article 65 In the event of aggravation of an occupational disease for which a worker has received or is receiving compensation under the legislation of a Member State, the following rules shall apply: 6. 1. 2. 3. 1. 2. 1. 44 (a) (b) (c) if the person concerned has not, while in receipt of benefits, been engaged in an occupation under the legislation of another Member State likely to cause or aggravate the disease in question, the competent institution of the first State shall be bound to meet the cost of the benefits under the legislation which it administers taking into account the aggravation; the legislation which it administers without if the person concerned, while in receipt of benefits, has pursued such an activity under the competent the legislation of another Member State, institution of the first Member State shall be bound to meet the cost of the benefits under taking the aggravation into account. The competent institution of the second Member State shall grant a supplement to the person concerned, the amount of which shall be equal to the difference between the amount of benefits due after the aggravation and the amount which would have been due prior to the aggravation under the legislation which it administers if the disease in question had occurred under the legislation of that Member State; if, in the case covered by subparagraph (b), a worker suffering from sclerogenic pneumoconiosis or from a disease determined under Article 62(6) is not entitled to benefits under the legislation of the second Member State, the competent institution of the first State shall be bound to provide the benefits under the legislation which it administers taking the aggravation into account. The competent institution of the second Member State shall, however, meet the cost of the difference between the amount of cash benefits, including pensions, due from the competent institution of the first Member State taking the aggravation into account, and the amount of the corresponding benefits which were due prior to the aggravation; (d) the provisions for reduction, suspension or withdrawal laid down by the legislation of a Member State shall not apply to persons receiving benefits awarded by institutions of two Member States in accordance with subparagraph (b). 2. In the event of aggravation of an occupational disease giving rise to the application of the provisions of Article 62(5), the following provisions shall apply: (a) (b) the competent institution which granted the benefits in accordance with the provisions of Article 62(1) shall be bound to provide the benefits under the legislation which it administers taking the aggravation into account; the cost of cash benefits, including pensions, shall continue to be divided between the institutions which shared the costs of the former benefits, in accordance with the provisions of Article 62(5). Where, however, the victim has again pursued an activity likely to cause or to aggravate the occupational disease in question, either under the legislation of one of the Member States in which he had already pursued an activity of the same nature or under the legislation of another Member State, the competent institution of such State shall meet the cost of the difference between the amount of benefits due taking account of the aggravation, and the amount of benefits due prior to the aggravation. Section 3 45 1. 2. 3. 4. 5. 6. Miscellaneous Provisions Article 66 Rules for taking into account the special features of certain legislations If there is no insurance against accidents at work or occupational diseases in the territory of the Member State in which the person concerned happens to be, or if such insurance exists but there is no institution responsible for providing benefits in kind, such benefits shall be provided by the institution of the place of stay or residence responsible for providing benefits in kind in the event of sickness. Where the legislation of the competent State makes wholly cost-free benefits in kind conditional upon use of the medical service organised by the employer, benefits in kind provided in the cases referred to in Articles 57 and 60(1) shall be deemed to have been provided by such a medical service. Where the legislation of the competent State includes a scheme relating to the obligations of the employer, benefits in kind provided in the cases referred to in Articles 57 and 60(1) shall be deemed to have been provided at the request of the competent institution. Where the nature of the scheme of the competent State relating to compensation for accidents at work is not that of compulsory insurance, the provision of benefits in kind shall be made directly by the employer or by the insurer involved. Where the legislation of a Member State provides expressly or by implication that accidents at work or occupational diseases which have occurred or have been confirmed previously shall be taken into consideration in order to assess the degree of incapacity, to establish a right to any benefit, or to determine the amount of benefit, the competent institution of that State shall also take into consideration accidents at work or occupational diseases which have occurred or have been confirmed previously under the legislation of another Member State as if they had occurred or had been confirmed under the legislation which it administers. Where the legislation of a Member State provides expressly or by implication that accidents at work or occupational diseases which have occurred or have been confirmed subsequently shall be taken into consideration in order to assess the degree of incapacity, to establish the right to any benefit, or to determine the amount of such benefit, institution of that State shall also take into consideration accidents at work or occupational diseases which have occurred or have been confirmed subsequently under the legislation of another Member State, as the legislation which it if they had occurred or had been confirmed under administers, but only where: the competent (1) and (2) no compensation was due in respect of the accident at work or the occupational disease which had occurred or had been confirmed previously under the legislation which it administers; no compensation is due by virtue of the legislation of the other Member State under which the accident at work or the occupational disease occurred or was 46 confirmed subsequently, notwithstanding the provisions of paragraph 5, in respect of that accident at work or that occupational disease. Article 67 Scheme applicable where there are several schemes in the country of stay or residence - Maximum duration of benefits 1. 2. 1. 2. 3. If the legislation of the country of stay or residence has several insurance schemes, the provisions applicable to workers covered by Article 57 or 60(1) shall be those of the scheme for manual workers in the steel industry. However, if that legislation includes a special scheme for workers in mines and similar undertakings, the provisions of that scheme shall apply to that category of workers where the institution of the place of stay or residence to which they submit their claim is competent to administer that scheme. If the legislation of a Member State fixes a maximum period during which benefits may be granted, the institution which administers that legislation may take into account any period during which the benefits have already been provided by the institution of another Member State. Section 4 Reimbursements between institutions Article 68 The competent institution shall be obliged to reimburse the amount of benefits in kind provided on its behalf in accordance with the provisions of Articles 57 and 60(1). The reimbursements referred to in paragraph 1 shall be determined and made in accordance with the procedures laid down by the decision referred to in Article 91, on proof of actual expenditure. Two or more Member States, or the competent authorities of such States, may provide for other methods of reimbursement or waive reimbursement between the institutions coming under their jurisdiction. CHAPTER 5 DEATH GRANTS Article 69 Aggregation of periods of insurance or residence institution of a Member State whose legislation makes the acquisition, The competent retention or recovery of the right to death grants subject to the completion of periods of insurance or residence shall take account, to the extent necessary, of periods of insurance or residence completed under the legislation of any other Member State as though they had been completed under the legislation which it administers. Article 70 47 Right to grants where death occurs in, or where the person entitled resides in, a Member State other than the competent State 1. 2. 3. When an employed person, a pensioner or a pension claimant, or a member of his family dies in the territory of a Member State other than the competent State, the death shall be deemed to have occurred in the territory of the latter State. The competent institution shall be obliged to award death grants payable under the legislation which it administers, even if the person entitled resides in the territory of a Member State other than the competent State. The provisions of paragraphs 1 and 2 shall also apply when the death is the result of an accident at work or an occupational disease. Article 71 Provision of benefits in the event of the death of a pensioner who had resided in a State other than the one whose institution was responsible for providing benefits in kind In the event of the death of a pensioner who was entitled to a pension under the legislation of one Member State, or to pensions under the legislations of two or more Member States, when such pensioner was residing in the territory of a Member State other than the one whose institution was responsible for providing him with benefits in kind under the provisions of Article 30, the death grants payable under the legislation administered by that institution shall be provided by that institution at its own expense as though the pensioner had been residing in the territory of the Member State of that institution at the time of his death. The provisions of the preceding paragraph shall apply by analogy to the members of a pensioner's family. CHAPTER 6 FAMILY BENEFITS Article 72 Aggregation of periods of insurance or employment Where the legislation of a Member State makes acquisition of the right to benefits conditional upon completion of periods of insurance or employment, the competent institution of that State shall take into account for this purpose, to the extent necessary, periods of insurance or employment completed in any other Member State, as if they were periods completed under the legislation which it administers. Article 73 Workers whose family members reside in a Member State other than the competent State A worker subject to the legislation of a Member State shall be entitled, in respect of the members of his family who are residing in the territory of another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI. Article 74 48 Unemployed persons whose family members reside in a Member State other than the competent State An unemployed worker who draws unemployment benefits under the legislation of a Member State shall be entitled, in respect of the members of his family residing in the territory of another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State, subject to the provisions of Annex VI. Article 75 Provision of benefits 1. 2. 3. 1. 2. Family benefits shall be provided, in the cases referred to in Article 73, by the competent institution of the State to whose legislation the worker is subject and, in the cases referred to in Article 74, by the competent institution of the State under whose legislation the unemployed worker receives unemployment benefits. They shall be provided in accordance with the provisions administered by such institutions, regardless of whether or not the natural or legal person to whom such benefits should be provided is residing or staying in the territory of the competent State or in that of another Member State. However, if the family benefits are not used by the person to whom they should be provided for the maintenance of the members of the family, the competent institution shall discharge its legal obligations by providing the said benefits to the natural or legal person actually maintaining the members of the family, at the request of, and through the agency of, the institution of their place of residence or of the designated institution or body appointed for this purpose by the competent authority of the country of their residence. Two or more Member States may agree that the competent institution shall provide the family benefits due under the legislation of those States or of one of those States to the natural or legal person actually maintaining the members of the family, either directly or through the agency of the institution of their place of residence. Article 76 Rules or priority in cases of overlapping entitlement to family benefits under the legislation of the competent State and under the legislation of the Member State of residence of the members of the family Where, during the same period, for the same family member and by reason of pursuit of a gainful activity, family benefits are provided for by the legislation of the Member State in whose territory the members of the family are residing, entitlement to the family benefits due in accordance with the legislation of another Member State, if appropriate under Article 73 or 74, shall be suspended up to the amount provided for in the legislation of the first Member State. If a claim for benefits is not made in the Member State in whose territory the members of the family are residing, the competent institution of the other Member State may apply the provisions of paragraph 1 as if benefits were granted in the first Member State. 49 BENEFITS FOR DEPENDENT CHILDREN OF PENSIONERS AND FOR ORPHANS CHAPTER 7 1. 2. 1. 2. Article 77 Dependent children of pensioners The term 'benefits', for the purposes of this Article, shall mean family allowances for persons receiving pensions in respect of old age, invalidity, an accident at work or occupational disease, and increases or supplements to such pensions in respect of the children of such pensioners, except for supplements granted under insurance schemes for accidents at work and occupational diseases. Benefits shall be granted in accordance with the following rules, irrespective of the Member State in whose territory the pensioner or the children are residing: (a) to a pensioner who draws a pension under the legislation of one Member State only, in accordance with the legislation of the Member State responsible for the pension; (b) to a pensioner who draws pensions under the legislation of more than one Member State: (i) or (ii) in accordance with the legislation of whichever of those States he resides in provided that, taking into account - where appropriate - the provisions of Article 79(1)(a), a right to one of the benefits referred to in paragraph 1 is acquired under the legislation of that State, in the other cases, in accordance with whichever of the legislations of those Member States to which he has been subject for the longest period of time, provided that, taking into account - where appropriate - the provisions of Article 79(1)(a), a right to one of the benefits referred to in paragraph 1 is acquired under such legislation; if no right is acquired under that legislation, the conditions for the acquisition of such right under the legislations of the other Member States concerned shall be examined in decreasing order of the length of periods of insurance or residence completed under the legislation of those Member States. Article 78 Orphans The term 'benefits', for the purposes of this Article, means family allowances and, where appropriate, supplementary or special allowances for orphans and orphans' insurance schemes for pensions, except accidents at work and occupational diseases. for orphans' pensions granted under Orphans' benefits shall be granted in accordance with the following rules, irrespective of the Member State in whose territory the orphan or the natural or legal person actually maintaining him is resident: 50 (a) (b) for the orphan of a deceased worker who was subject to the legislation of one Member State only, in accordance with the legislation of that State; for the orphan of a deceased worker who was subject to the legislations of several Member States: (i) or (ii) in accordance with the legislation of whichever of those States in which the orphan resides provided that, taking into account - where appropriate - the provisions of Article 79(1)(a), a right to one of the benefits referred to in paragraph 1 is acquired under the legislation of that State; in other cases, in accordance with whichever of the legislations of those Member State to which the deceased had been subject for the longest period of time, provided that, taking into account - where appropriate - the provisions of Article 79(1)(a), the right to one of the benefits referred to in paragraph 1 is acquired under such legislation; is acquired under that legislation, the conditions for the acquisition of such right under the legislations of the other Member States shall be examined in decreasing order of the length of periods of insurance or residence completed under the legislation of those Member States. if no right However, the legislation of the Member State applicable in respect of provision of the benefits referred to in Article 77 to a pensioner's children shall remain applicable after the death of the said pensioner in respect of provision of the benefits to his orphans. Article 79 Provisions common to benefits for dependent children of pensioners and for orphans 1. Benefits, within the meaning of Articles 77 and 78, shall be provided, in accordance with the legislation determined by applying the provisions of those Articles, by the institution responsible for administering such legislation and at its expense, as if the pensioner or the deceased had been subject only to the legislation of the competent State. However, (a) (b) if that legislation provides that the acquisition, retention or recovery of the right to benefits shall be dependent on the length of periods of insurance, employment or residence such length shall be determined taking into account, where appropriate, the provisions of Article 47 or Article 72, as the case may be; if that legislation provides that the amount of benefits shall be calculated on the basis of the amount of the pension, or shall depend on the length of periods of insurance, the amount of these benefits shall be calculated on the basis of the theoretical amount determined in accordance with the provisions of Article 48(2). 51 2. 3. In cases where the effect of applying the rule laid down in Articles 77(2)(b)(ii) and 78(2)(b)(ii) would be to make several Member States competent, the length of the periods being equal, benefits within the meaning of Article 77 or 78, as the case may be, shall be granted in accordance with whichever of the legislations of those Member States to which the pensioner or the deceased was last subject. The right to benefits due only under national legislation or under the provisions of paragraph 2 and under Articles 77 and 78 shall be suspended if the children become entitled to family benefits or family allowances under the legislation of a Member State by virtue of the pursuit of gainful activity. In such cases, the persons concerned shall be regarded as members of a worker's family. PART III - MISCELLANEOUS PROVISIONS 1. 2. 3. 4. 5. Article 80 Cooperation between competent authorities The competent authorities of the Member States and of Tunisia shall furnish one another with all information concerning: (a) measures taken to implement this Decision; (b) changes in their legislation which are likely to affect the implementation of this Decision. For the purposes of implementing this Decision, the authorities and institutions of the Member States and of Tunisia shall lend their good offices as though implementing their own legislation. The administrative assistance furnished by the said authorities and institutions shall, as a rule, be free of charge. However, the competent authorities of the Member States and of Tunisia may agree to certain expenses being reimbursed. The authorities and institutions of Member States and of Tunisia may, for the purpose of implementing this Decision, communicate directly with one another and with the persons concerned or their representatives. The authorities, institutions and tribunals of one Member State or of Tunisia may not reject claims or other documents submitted to them on the grounds that they are written in an official language of another Member State or of Tunisia. (a) Where, under this Decision or under the decision referred to in Article 91, the authorities or institutions of a Member State or of Tunisia communicate personal data to the authorities or institutions of another Member State or of Tunisia, that communication shall be subject to the legal provisions governing protection of data laid down by the State providing the data. Any subsequent transmission as well as the storage, alteration and destruction of the data shall be subject to the provisions of the legislation on data protection of the receiving State. 52 (b) The use of personal data for purposes other than those of social security shall be subject to the approval of the person concerned or in accordance with the other guarantees provided for by national legislation. Article 81 Exemptions from or reductions of taxes - Exemption from authentication 1. 2. Any exemption from or reduction of taxes, stamp duty, notarial or registration fees provided for in the legislation of one Member State or of Tunisia in respect of certificates or documents required to be produced in application of the legislation of that State shall be extended to similar documents required to be produced for the purposes of the legislation of another Member State or of Tunisia, or of this Decision. All statements, documents and certificates of any kind whatsoever required to be produced in application of this Decision shall be exempt from authentication by diplomatic or consular authorities. Article 82 Claims, declarations or appeals submitted to an authority, institution or tribunal of a Member State other than the competent State or to a Tunisian authority, institution or tribunal 1. 2. 3. Any claim, declaration or appeal which should have been submitted, in application of the legislation of one Member State, within a specified period to an authority, institution or tribunal of that State shall be admissible if it is submitted within the same period to a corresponding authority, institution or tribunal of another State or of Tunisia. In such a case the authority, institution or tribunal receiving the claim, declaration or appeal shall forward it without delay to the competent authority, institution or tribunal of the former State either directly or through the competent authorities concerned. The date on which such claim, declaration or appeal was submitted to the authority, institution or tribunal of the latter State shall be considered as the date of its submission to the competent authority, institution or tribunal. Any claim, declaration or appeal which should have been submitted, in application of Tunisian legislation, within a specified period to an authority, institution or tribunal of that State shall be admissible if it is submitted within the same period to a corresponding authority, institution or tribunal of a Member State. In such a case the authority, institution, or tribunal receiving the claim, declaration or appeal shall forward it without delay to the competent authority, institution or tribunal of Tunisia either directly or through the competent authorities concerned. The date on which such claim, declaration or appeal was submitted to the authority, institution or tribunal of the Member State shall be considered as the date of its submission to the competent authority, institution or tribunal. The competent authorities of the Member States and of Tunisia shall name the authorities, tribunals entitled to validly receive such claims, declarations or appeals. institutions or Article 83 53 Medical examinations 1. 2. Medical examinations provided for by the legislation of one Member State may be carried out at the request of the competent institution, in the territory of another Member State or of Tunisia, by the institution of the place of stay or residence of the person entitled to benefits, under the conditions laid down in the decision referred to in Article 91 or, failing that, under the conditions agreed upon between the competent authorities of the States concerned. Medical examinations carried out under the conditions laid down in paragraph 1 shall be considered to have been carried out in the territory of the competent State. Article 84 Transfers of sums of money payable in application of this Decision Where appropriate, money transfers effected pursuant to this Decision shall be made in accordance with the relevant agreements in force between the States concerned at the time of transfer. Where no such agreements are in force between two States, the competent authorities of the said States or the authorities responsible for international payments shall, by mutual agreement, determine the measures necessary for effecting such transfers. Article 85 Special procedures for applying certain legislations The special procedures for applying the legislations of certain Member States or of Tunisia are mentioned in Annex VI. Article 86 Collection of contributions 1. 2. 1. Contributions payable to an institution of one Member State may be collected in the territory of another Member State in accordance with the administrative procedure and with the guarantees and privileges applicable to the collection of contributions payable to the corresponding institution of the latter State. The procedures for implementing the provisions of paragraph 1 shall be governed, in so far as is necessary, by the decision referred to in Article 91 or by means of agreements between Member States. Such implementing procedures may also cover procedures for enforcing payment. Article 87 Rights of institutions responsible for providing benefits against liable third parties If a person receives benefits under the legislation of one Member State in respect of an injury resulting from an occurrence in the territory of another Member State, any rights of the institution responsible for providing benefits against a third party obliged to compensate for the injury shall be governed by the following rules: 54 (a) Where the institution responsible for benefits is, by virtue of the legislation which it administers, subrogated to the rights which the recipient has against the third party, such subrogation shall be recognised by each Member State. (b) Where the said institution has direct rights against the third party, such rights shall be recognised by each Member State. 2. If a person receives benefits under the legislation of one Member State in respect of an injury resulting from an occurrence in the territory of another Member State, the provisions of the said legislation which determine in which cases the civil liability of employers or of the persons employed by them is to be excluded shall apply with regard to the said person or to the competent institution. The provisions of paragraph 1 shall also apply to any rights of the institution responsible for providing benefits against an employer or the persons employed by him in cases where their liability is not excluded. PART IV - TRANSITIONAL AND FINAL PROVISIONS Article 88 Transitional provision 1. 2. 3. 4. 5. 6. 7. No right shall be acquired under this Decision in respect of a period prior to the date on which it enters into force. All periods of insurance and, where appropriate, all periods of employment or residence completed under the legislation of a Member State or of Tunisia prior to the date on which this Decision enters into force shall be taken into consideration for the determination of rights acquired under the provisions of this Decision. Subject to the provisions of paragraph 1, a right shall be acquired under this Decision even though it relates to a contingency which materialised prior to the date on which this Decision enters into force. Any benefit which has not been awarded or which has been suspended by reason of the nationality or place of residence of the person concerned shall, on the application of the person concerned, be awarded or resumed with effect from the date on which this Decision enters into force, provided that the rights previously determined have not given rise to a lump-sum settlement. The rights of a person to whom a pension was awarded prior to the date on which this Decision enters into force may, on the application of the person concerned, be reviewed, taking into account the provisions of this Decision. If an application referred to in paragraph 4 or 5 is submitted within two years from the date on which this Decision enters into force, the rights acquired under this Decision shall have effect from that date, and the provisions of the legislation of any Member State or of Tunisia concerning the forfeiture or limitation of rights may not be invoked against the persons concerned. If a request referred to in paragraph 4 or 5 is submitted after the expiry of the two- year period following the date on which this Decision comes into force, rights not 55 forfeited or not limited shall have effect from the date on which the request was submitted, subject to any more favourable provisions under the legislation of any Member State or of Tunisia. Article 89 Annexes to this Decision 1. 2. 1. 2. The annexes to this Decision constitute an integral part thereof. At the request of the Member State or Member States concerned or of Tunisia, the said annexes may be amended by decision of the Association Council. Article 90 Notifications pursuant to certain provisions The notifications referred to in Article 5 shall be addressed to the President of the Association Council. They shall indicate the date of entry into force of the laws and schemes in question. Notifications received in accordance with the provisions of paragraph 1 shall be published in the Official Journal of the European Communities. Article 91 Procedures for implementing this Decision A subsequent decision shall lay down the procedures for implementing this Decision. Article 92 Agreements supplementing the procedures for implementing this Decision Two or more Member States, or Tunisia and one or more Member States, may, if necessary, conclude agreements to supplement the administrative procedures for implementing this Decision. Article 93 Each Contracting Party shall, each to the extent to which it is concerned, take the necessary steps to implement this Decision. Done at. 56 ANNEX I PERSONS COVERED I. Employed persons [Article 1(a)(ii) and (iii) of the Decision] A. BELGIUM Does not apply. B. DENMARK 1. Any person who, from the fact of pursuing an activity as an employed person, is subject: (a) (b) to the legislation on accidents at work and occupational diseases for the period prior to 1 September 1977; legislation on supplementary pensions to the employed persons (arbejdsmarkedets tillægspension, ATP) for the period commencing on or after 1 September 1977, for shall be regarded as an employed person within the meaning of Article 1(a)(ii) of the Decision. C. GERMANY If the competent institution for granting family benefits in accordance with Part II, Title II, Chapter 6 of the Decision is a German institution, then within the meaning of Article 1(a)(ii) of the Decision 'employed person' means any person compulsorily insured against unemployment or any person who, as a result of such insurance, obtains cash benefits under sickness insurance or comparable benefits. D. SPAIN Does not apply. E. FRANCE If the competent institution for granting family benefits in accordance with Part II, Title II, Chapter 6 of the Decision is a French institution, then within the meaning of Article 1(a)(ii) of the Decision 'employed person' means any person compulsorily insured under the social security scheme in accordance with Article L 311-2 of the Social Security Code and who fulfils the minimum conditions regarding activity or remuneration set out in Article L 313-1 of the Social Security Code in order to obtain cash benefits under sickness, maternity and invalidity insurance or a person who obtains such cash benefits. F. GREECE 1. 2. Persons insured under the OGA scheme who pursue exclusively activities as employed persons or who are or have been subject to the legislation of another Member State and who consequently are or have been 'employed persons' within the meaning of Article 1(a) of the Decision, shall be regarded as employed persons within the meaning of Article 1(a)(iii) of the Decision. For the purposes of granting the national family allowances, persons referred to in Article 1(a)(i) and (iii) of the Decision shall be regarded as employed persons within the meaning of Article 1(a)(ii) of the Decision. 57 G. IRELAND Any person who is compulsorily or voluntarily insured pursuant to the provisions of Section 5 and 37 of the Social Welfare (Consolidation) Act 1981 shall be regarded as an employed person within the meaning of Article 1(a)(ii) of the Decision. H. ITALY Does not apply. I. LUXEMBOURG Does not apply. J. NETHERLANDS Does not apply. K. AUSTRIA Does not apply. L. PORTUGAL Does not apply. M. FINLAND Any person who is an employed person within the meaning of the legislation on the Employed Persons' Pensions Scheme shall be regarded as an employed person within the meaning of Article 1(a)(ii) of the Decision. N. SWEDEN Any person who is an employed person within the meaning of the legislation on work accident insurance shall be regarded as an employed person with the meaning of Article 1(a)(ii) of the Decision. O. UNITED KINGDOM Any person who is an 'employed earner' within the meaning of the legislation of Great Britain or of the legislation of Northern Ireland shall be regarded as an employed person within the meaning of Article 1(a)(ii) of the Decision, as shall any person in respect of whom contributions are payable as an 'employed person' within the meaning of the legislation of Gibraltar. II. Members of the family (second sentence of Article 1(d) of the Decision) A. BELGIUM Does not apply. 58 B. DENMARK For the purpose of determining a right to sickness or maternity benefits in kind existing pursuant to Articles 23(1)(a) and 34 of the Decision, the expression 'member of the family' shall mean: 1. the spouse of an employed person or of another person who is an entitled person under the terms of the Regulation, in so far as they are not themselves entitled persons under the terms of the Decision; or 2. a child under 18 years of age in the care of someone who is an entitled person under the terms of the Decision. C. GERMANY Does not apply. D. SPAIN Does not apply. E. FRANCE 'Member of the family' means any person mentioned in Article L 512-3 of the Social Security Code. F. GREECE Does not apply. G. IRELAND In order to determine the right to benefits in kind for sickness and maternity pursuant to the Decision, 'member of the family' shall mean any person regarded as being a dependant of a worker for application of the Health Acts of 1947 to 1970. H. ITALY Does not apply. I. LUXEMBOURG Does not apply. J. NETHERLANDS Does not apply. K. AUSTRIA Does not apply. L. PORTUGAL Does not apply. M. FINLAND 59 For the purpose of determining entitlement to benefits in kind in application of Chapter 1, Title II, Part II of the Decision, 'member of the family' shall mean a spouse or a child as defined by the Sickness Insurance Act. N. SWEDEN For the purpose of determining entitlement to benefits in kind pursuant to the provisions of Chapter 1, Title II, Part II of the Decision, 'member of the family' shall mean a spouse or a child under the age of 18. O. UNITED KINGDOM For the purpose of determining entitlement to benefits in kind 'member of the family' shall mean: 1. As regards the legislation of Great Britain and Northern Ireland: (1) a spouse, provided that: (a) that person, whether an employed person or another person who is an entitled person under terms of the Regulation, is: (i) residing with the spouse; or (ii) contributing to the maintenance of the spouse; and (b) the spouse does not: (i) or (ii) have earnings as an employed person or as an entitled person under the terms of the Regulation; receive a social security benefit or pension based on their own insurance; (2) a person having care of a child, provided that: (a) the employed person or another person who is an entitled person under the terms of the Regulation: lives together with the person concerned as though husband and wife; (i) or (ii) contributes to the maintenance of the person concerned; and (b) the person concerned does not: (i) have earnings as an employed person or as an entitled person under the terms of the Regulation; 60 or (ii) receive a social security benefit or pension based on their own insurance; (3) a child in respect of whom that person, the employed person or another person who is an entitled person under the terms of the Regulation is or could be paid child benefit. 2. As regards the legislation of Gibraltar: any person regarded as a dependant within the meaning of the Group Practice Scheme Ordinance, 1973. 61 ANNEX II Matters covered I. Special childbirth or adoption allowances excluded from the scope of the Decision under the terms of Article 1(s)(i) A. BELGIUM (a) childbirth allowance; (b) adoption premium. B. DENMARK None. C. GERMANY None. D. SPAIN None. E. FRANCE (a) allowance for young children up to the age of three months; (b) adoption allowance. F. GREECE None. G. IRELAND None. H. ITALY None. I. LUXEMBOURG (a) antenatal allowances; (b) childbirth allowances. J. NETHERLANDS None. K. AUSTRIA The general part of the childbirth allowance. 62 L. PORTUGAL None. M. FINLAND The maternity package or the maternity lump-sum grant pursuant to the Maternity Grant Act. N. SWEDEN None. O. UNITED KINGDOM None. II. Special non-contributory benefits within the meaning of Article 4(4) which do not fall within the scope of the Decision A. BELGIUM None. B. DENMARK None. C. GERMANY (a) Benefits granted under Länder legislation for the disabled, and in particular for the blind. (b) The social supplement under the Law of 28 June 1990 on the alignment of pensions. D. SPAIN None. E. FRANCE None. F. GREECE None. G. IRELAND None. H. ITALY None. I. LUXEMBOURG None. 63 J. NETHERLANDS None. K. AUSTRIA Benefits granted under Bundesländer legislation for disabled persons and persons in the need of care. L. PORTUGAL None. M. FINLAND None. N. SWEDEN None. O. UNITED KINGDOM None. 64 ANNEX III PROVISIONS OF SOCIAL SECURITY CONVENTIONS WHICH APPLY TO ALL PERSONS TO WHOM THE DECISION APPLIES [Article 6 of the Decision] 1. BELGIUM-DENMARK Does not apply. 2. BELGIUM-GERMANY (a) Articles 3 and 4 of the Final Protocol of 7 December 1957 to the General Convention of that date, as worded in the Complementary Protocol of 10 November 1960. (b) Complementary Agreement No 3 of 7 December 1957 to the General Convention of that date, as worded in the Complementary Protocol of 10 November 1960 (payment of pensions for the period preceding the entry into force of the General Convention). 3. BELGIUM-SPAIN Does not apply. 4. BELGIUM-FRANCE (a) Articles 13, 16 and 23 of the Complementary Agreement of 17 January 1948 to the General Convention of that date (workers in mines and similar undertakings). (b) The exchange of letters of 27 February 1953 (application of Article 4(2) of the General Convention of 17 January 1948). (c) The exchange of letters of 29 July 1953 concerning the allowance for elderly employed persons. 5. BELGIUM-GREECE Articles 15(2), 35(2) and 37 of the General Convention of 1 April 1958. 6. BELGIUM-IRELAND Does not apply. 7. BELGIUM-ITALY Article 29 of the Convention of 30 April 1948. 8. BELGIUM-LUXEMBOURG Articles 2 and 4 of the Agreement of 27 October 1971 (overseas social security). 9. BELGIUM-NETHERLANDS Articles 2 and 4 of the Agreement of 4 February 1969 (overseas gainful activity). 65 10. BELGIUM-AUSTRIA (a) Article 4 of the Convention on Social Security of 4 April 1977 as regards persons residing in a third State. (b) Point III of the Final Protocol to the said Convention as regards persons residing in a third State. 11. BELGIUM-PORTUGAL Articles 1 and 5 of the Convention of 13 January 1965 (social security for employees of the Belgian Congo and Rwanda-Urundi) as worded in the Agreement concluded by exchange of letters dated 18 June 1982. 12. BELGIUM-FINLAND Does not apply. 13. BELGIUM-SWEDEN Does not apply. 14. BELGIUM-UNITED KINGDOM Does not apply. 15. DENMARK-GERMANY (a) Point 15 of the Final Protocol to the Convention on Social Insurances of 14 August 1953. (b) The Complementary Agreement of 14 August 1953 to the aforementioned Convention. 16. DENMARK-SPAIN Does not apply. 17. DENMARK-FRANCE Does not apply. 18. DENMARK-GREECE Does not apply. 19. DENMARK-IRELAND Does not apply. 20. DENMARK-ITALY Does not apply. 21. DENMARK-LUXEMBOURG Does not apply. 22. DENMARK-NETHERLANDS Does not apply. 66 23. DENMARK-AUSTRIA (a) Article 4 of the Convention on Social Security of 16 June 1987 as regards persons residing in a third State. (b) Point I of the Final Protocol to the said Convention as regards persons residing in a third State. 24. DENMARK-PORTUGAL Does not apply. 25. DENMARK-FINLAND Article 10 of the Nordic Convention on Social Security of 15 June 1992. 26. DENMARK-SWEDEN Article 10 of the Nordic Convention on Social Security of 15 June 1992. 27. DENMARK-UNITED KINGDOM Does not apply. 28. GERMANY-SPAIN Articles 4(1) and 45(2) of the Social Security Convention of 4 December 1973. 29. GERMANY-FRANCE (a) Articles 11(1), 16 (second paragraph) and 19 of the General Convention of 10 July 1950. (b) Article 9 of Complementary Agreement No 1 of 10 July 1950 to the General Convention of the same date (workers in mines and similar undertakings). (c) Complementary Agreement No 4 of 10 July 1950 to the General Convention of the same date, as worded in added Section No 2 of 18 June 1955. (d) Titles I and III of added Section No 2 of 18 June 1955. (e) Points 6, 7 and 8 of the General Protocol of 10 July 1950 to the General Convention of the same date. (f) Titles II, III and IV of the Agreement of 20 December 1963 (social security in the Saar). 30. GERMANY-GREECE (a) Article 5(2) of the General Convention of 25 April 1961. (b) Article 8(1), (2)(b) and (3), Articles 9 to 11 and Chapters I and IV, in so far as they concern these Articles, of the Convention on Unemployment Insurance of 31 May 1961, together with the note in the minutes of 14 June 1980. (c) 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. 67 31. GERMANY-IRELAND Does not apply. 32. GERMANY-ITALY (a) Articles 3(2), 23(2), 26 and 36(3) of the Convention of 5 May 1953 (social insurance). (b) The Complementary Agreement of 12 May 1953 to the Convention of 5 May 1953 (payment of pensions for the period prior to the entry into force of the Convention). 33. GERMANY-LUXEMBOURG Articles 4, 5, 6 and 7 of the Treaty of 11 July 1959 (Ausgleichsvertrag) (settlement of dispute between Germany and Luxembourg). 34. GERMANY-NETHERLANDS (a) Article 3(2) of the Convention of 29 March 1951. (b) Articles 2 and 3 of Complementary Agreement No 4 of 21 December 1956 to the Convention of 29 March 1951 (settlement of rights acquired under the German social insurance scheme by Dutch workers between 13 May 1940 and 1 September 1945). 35. GERMANY-AUSTRIA (a) Article 41 of the Convention on Social Security of 22 December 1966 as amended by Complementary Conventions No 1 of 10 April 1969, No 2 of 29 March 1974 and No 3 of 29 August 1980. (b) Paragraphs 3(c), 3(d), 17, 20(a) and 21 of the Final Protocol to the said Convention. (c) Article 3 of the said Convention as regards persons residing in a third State. (d) Paragraph 3(g) of the Final Protocol to the said Convention as regards persons residing in a third State. (e) Article 4(1) of the Convention, as regards the German legislation, under which accidents (and occupational diseases) occurring outside the territory of the Federal Republic of Germany, and periods completed outside that territory, do not give rise to payment of benefits or only give rise to payment of benefits under certain conditions, when those entitled to them reside outside the territory of the Federal Republic of Germany, in cases in which: (i) the benefit has already been paid or is payable on 1 January 1994; (ii) the beneficiary has established his habitual residence in Austria before 1 January 1994 and the payment of pensions due under the pension and accident insurance begins prior to 31 December 1994; this shall also apply to periods during which another pension, including a survivor's pension, was collected, replacing the initial one, when the periods of collection follow each other without interruption. (f) Paragraph 19(b) of the Final Protocol to the said Convention. In applying point 3(c) of this provision the amount taken into account by the competent institution shall not exceed the amount which is due in respect of the corresponding periods to be remunerated by this institution. (g) Article 2 of Complementary Convention No 1 of 10 April 1969 to the said Convention. 68 (h) Articles 1(5) and 8 of the Convention on Unemployment Insurance of 19 July 1978. (i) Paragraph 10 of the Final Protocol to the said Convention. 36. GERMANY-PORTUGAL Article 5(2) of the Convention of 6 November 1964. 37. GERMANY-FINLAND (a) Article 4 of the Convention on Social Security of 23 April 1979. (b) Paragraph 9(a) of the Final Protocol to the said Convention. 38. GERMANY-SWEDEN (a) Article 4(2) of the Convention on Social Security of 27 February 1976. (b) Paragraph 8(a) of the Final Protocol to the said Convention. 39. GERMANY-UNITED KINGDOM (a) Articles 3(1) and (6) and 7(2) to (6) of the Convention on Social Security of 20 April 1960. (b) Articles 2 to 7 of the Final Protocol to the Convention on Social Security of 20 April 1960. (c) Articles 2(5) and 5(2) to (6) of the Convention on Unemployment Insurance of 20 April 1960. 40. SPAIN-FRANCE Does not apply. 41. SPAIN-GREECE Does not apply. 42. SPAIN-IRELAND Does not apply. 43. SPAIN-ITALY Articles 5, 18(1)(c) and 23 of the Convention on Social Security of 30 October 1979. 44. SPAIN-LUXEMBOURG (a) Article 5(2) of the Convention of 8 May 1969. (b) Article 1 of the Administrative Arrangement of 27 June 1975 for the application of the Convention of 8 May 1969 to self-employed persons. 45. SPAIN-NETHERLANDS Article 23(2) of the Convention on Social Security of 5 February 1974. 46. SPAIN-AUSTRIA 69 (a) Article 4 of the Convention on Social Security of 6 November 1981 as regards persons residing in a third State. (b) Point II of the Final Protocol to the said Convention as regards persons residing in a third State. 47. SPAIN-PORTUGAL Articles 4(2), 16(2) and 22 of the General Convention of 11 June 1969. 48. SPAIN-FINLAND Article 5(2) of the Convention on Social Security of 19 December 1985. 49. SPAIN-SWEDEN Articles 5(2) and 16 of the Convention on Social Security of 4 February 1983. 50. SPAIN-UNITED KINGDOM Does not apply. 51. FRANCE-GREECE Articles 16 (fourth subparagraph) and 30 of the General Convention of 19 April 1958. 52. FRANCE-IRELAND Does not apply. 53. FRANCE-ITALY (a) Articles 20 and 24 of the General Convention of 31 March 1948. (b) The exchange of letters of 3 March 1956 (sickness benefits for seasonal workers employed in agriculture). 54. FRANCE-LUXEMBOURG Articles 11 and 14 of the Complementary Agreement of 12 November 1949 to the General Convention of the same date (workers in mines and similar undertakings). 55. FRANCE-NETHERLANDS Article 11 of the Complementary Agreement of 1 June 1954 to the General Convention of 7 January 1950 (workers in mines and similar undertakings). 56. FRANCE-AUSTRIA Does not apply. 57. FRANCE-PORTUGAL Does not apply. 58. FRANCE-FINLAND Does not apply. 70 59. FRANCE-SWEDEN Does not apply. 60. FRANCE-UNITED KINGDOM The exchange of letters of 27 and 30 July 1970 concerning the position with regard to social security of United Kingdom teachers temporarily pursuing their profession in France by virtue of the Cultural Convention of 2 March 1948. 61. GREECE-IRELAND Does not apply. 62. GREECE-ITALY Does not apply. 63. GREECE-LUXEMBOURG Does not apply. 64. GREECE-NETHERLANDS Article 4(2) of the General Convention of 13 September 1966. 65. GREECE-AUSTRIA (a) Article 4 of the Convention on Social Security of 14 December 1979 as amended by the Complementary Convention of 21 May 1986 as regards persons residing in a third State. (b) Point II of the Final Protocol to the said Convention as regards persons residing in a third State. 66. GREECE-PORTUGAL Does not apply. 67. GREECE-FINLAND Articles 5(2) and 21 of the Convention on Social Security of 11 March 1988. 68. GREECE-SWEDEN Articles 5(2) and 23 of the Convention on Social Security of 5 May 1978 as amended by the Complementary Convention of 14 September 1984. 69. GREECE-UNITED KINGDOM Does not apply. 70. IRELAND-ITALY Does not apply. 71. IRELAND-LUXEMBOURG Does not apply. 71 72. IRELAND-NETHERLANDS Does not apply. 73. IRELAND-AUSTRIA Article 4 of the Convention on Social Security of 30 September 1988 as regards persons residing in a third State. 74. IRELAND-PORTUGAL Does not apply. 75. IRELAND-FINLAND Does not apply. 76. IRELAND-SWEDEN Does not apply. 77. IRELAND-UNITED KINGDOM Article 8 of the Agreement on Social Security of 14 September 1971. 78. ITALY-LUXEMBOURG Articles 18(2) and 24 of the General Convention of 29 May 1951. 79. ITALY-NETHERLANDS Article 21(2) of the General Convention of 28 October 1952. 80. ITALY-AUSTRIA (a) Articles 5(3) and 9(2) of the Convention on Social Security of 21 January 1981. (b) Article 4 of the said Convention and paragraph 2 of the Final Protocol to the said Convention as regards persons residing in a third State. 81. ITALY-PORTUGAL Does not apply. 82. ITALY-FINLAND Does not apply. 83. ITALY-SWEDEN Article 20 of the Convention on Social Security of 25 September 1979. 84. ITALY-UNITED KINGDOM Does not apply. 85. LUXEMBOURG-NETHERLANDS Does not apply. 72 86. LUXEMBOURG-AUSTRIA (a) Article 5(2) of the Convention on Social Security of 21 December 1971 as amended by Complementary Conventions No 1 of 16 May 1973 and No 2 of 9 October 1978. (b) Article 3(2) of the said Convention as regards persons residing in a third State. (c) Point III of the Final Protocol to the said Convention as regards persons residing in a third State. 87. LUXEMBOURG-PORTUGAL Article 3(2) of the Convention of 12 February 1965. 88. LUXEMBOURG-FINLAND Article 5(2) of the Convention on Social Security of 15 September 1988. 89. LUXEMBOURG-SWEDEN (a) Articles 4 and 29(1) of the Convention on Social Security of 21 February 1985 as regards persons residing in a third State. (b) Article 30 of the said Convention. 90. LUXEMBOURG-UNITED KINGDOM Does not apply. 91. NETHERLANDS-AUSTRIA (a) Article 3 of the Convention on Social Security of 7 March 1974 as amended by the Complementary Convention of 5 November 1980 as regards persons residing in a third State. (b) Point II of the Final Protocol to the said Convention as regards persons residing in a third State. 92. NETHERLANDS-PORTUGAL Articles 5(2) and 31 of the Convention of 19 July 1979. 93. NETHERLANDS-FINLAND Does not apply. 94. NETHERLANDS-SWEDEN Articles 4 and 24(3) of the Convention on Social Security of 2 July 1976 as regards persons residing in a third State. 95. NETHERLANDS-UNITED KINGDOM Does not apply. 96. AUSTRIA-PORTUGAL Does not apply. 97. AUSTRIA-FINLAND 73 (a) Article 4 of the Convention on Social Security of 11 December 1985 as amended by the Complementary Convention of 9 March 1993 as regards persons residing in a third State. (b) Point II of the Final Protocol to the said Convention as regards persons residing in a third State. 98. AUSTRIA-SWEDEN (a) Articles 4 and 24(1) of the Convention on Social Security of 11 November 1975 as amended by the Complementary Convention of 21 October 1982 as regards persons residing in a third State. (b) Point II of the Final Protocol to the said Convention as regards persons residing in a third State. 99. AUSTRIA-UNITED KINGDOM (a) Article 3 of the Convention on Social Security of 22 July 1980 as amended by Complementary Conventions No 1 of 9 December 1985 and No 2 of 13 October 1992 as regards persons residing in a third State. (b) Protocol, concerning benefits in kind, to the said Convention with the exception of Article 2(3) as regards persons who cannot claim entitlement to benefits under Chapter 1 of Title III of the Regulation. 100. PORTUGAL-FINLAND Does not apply. 101. PORTUGAL-SWEDEN Article 6 of the Convention on Social Security of 25 October 1978. 102. PORTUGAL-UNITED KINGDOM (a) Article 2(1) of the Protocol on medical treatment of 15 November 1978. (b) As regards Portuguese workers, and for the period from 22 October 1987 to the end of the transitional period provided for in Article 220(1) of the Act relating to the conditions of accession of Spain and Portugal: Article 26 of the Social Security Convention of 15 November 1978, as amended by the Exchange of Letters of 28 September 1987. 103. FINLAND-SWEDEN Article 10 of the Nordic Convention on Social Security of 15 June 1992. 104. FINLAND-UNITED KINGDOM Does not apply. 105. SWEDEN-UNITED KINGDOM Article 4(3) of the Convention on Social Security of 29 June 1987. 74 ANNEX IV SPECIAL NON-CONTRIBUTORY BENEFITS [Article 8 of the Decision] A. BELGIUM (a) Allowances for disabled persons (Law of 27 February 1987). (b) Guaranteed income for elderly persons (Law of 1 April 1969). (c) Guaranteed family benefits (Law of 20 July 1971). B. DENMARK (a) The flat-rate rehabilitation benefit awarded under the Law on Social Welfare for the maintenance of persons receiving rehabilitation treatment. (b) Accommodation expenses for pensioners (Law on individual accommodation assistance, consolidated by Law No 204 of 29 March 1995). C. GERMANY None. D. SPAIN (a) Benefits under the Law on the social integration of disabled persons (Law No 13/82 of 7 April 1982). (b) Cash benefits to assist the elderly and invalids unable to work (Royal Decree No 2620/81 of 24 July 1981). (c) Non-contributory invalidity and retirement pensions and dependent child benefits as provided for in Articles 132(1), 136a, 137a, 138a, 154a, 155a, 156a, 167, 168(2), 169 and 170 of the General Law on Social Security, as amended by Law No 26/90 of 20 December 1990 establishing non-contributory social security benefits. E. FRANCE (a) Supplementary allowance from the National Solidarity Fund (Law of 30 June 1956). (b) Disabled adults' allowance (Law of 30 June 1975). (c) The special allowance (Law of 10 July 1952). F. GREECE (a) Special benefits for the elderly (Law 1296/82). (b) Allowance for children of non-working mothers whose husbands have been called up for military service (Law 1483/84, Article 23(1)). (c) Allowance for children of non-working mothers whose husbands are in prison (Law 1483/84, Article 23(2)). 75 (d) Allowance for persons suffering from congenital hemolytic anaemia (Decree-Law 321/69; joint ministerial order G4a/F. 222/oik. 2204). (e) Allowance for the deaf and dumb (Emergency law 421/37) (joint ministerial order G4b/F. 422/oik. 2205). (f) Allowance for severely disabled persons (Decree-Law 162/73) (joint ministerial order G4a/F. 225/oik. 161). for (g) Allowance G4a/F. 224/oik. 2207). spasmophiliacs (Decree-Law 162/72) (joint ministerial order (h) Allowance for persons suffering from a serious mental disability (Decree-Law 162/73) (joint ministerial order G4b/F. 423/oik. 2208). (i) Allowance for the blind (Law 958/79) (joint ministerial order G4b/F. 421/oik. 2209). G. IRELAND (a) Unemployment assistance (Social Welfare (Consolidation) Act 1981, Part III, Chapter 2). (b) Old age and blind persons' pensions (non-contributory) (Social Welfare (Consolidation) Act 1981, Part III, Chapter 3). (c) Widows' and orphans' pensions (non-contributory) (Social Welfare (Consolidation) Act 1981, Part III, Chapter 4). (d) Lone parent's allowance (Social Welfare Act 1990, Part III). (e) Carer's allowance (Social Welfare Act 1990, Part IV). (f) Family income supplement (Social Welfare Act 1984, Part III). (g) Disabled person's maintenance allowance (Health Act 1970, Section 69). (h) Mobility allowance (Health Act 1970, Section 61). (i) Infectious diseases maintenance allowance (Health Act 1947, Sections 5 and 44(5)). (j) Domiciliary care allowance (Health Act 1970, Section 61). (k) Blind persons' welfare allowance (Blind Persons Act 1920, Chapter 49). (l) Disabled person's rehabilitation allowance (Health Act 1970, Sections 68, 69 and 72). H. ITALY (a) Social pensions for persons without means (Law No 153 of 30 April 1969). (b) Pensions and allowances for the civilian disabled or invalids (Laws No 118 of 30 March 1974, No 18 of 11 February 1980 and No 508 of 23 November 1988). (c) Pensions and allowances for the deaf and dumb (Laws No 381 of 26 May 1970 and No 508 of 23 November 1988). (d) Pensions and allowances for the civilian blind (Laws No 382 of 27 May 1970 and No 508 of 23 November 1988). 76 (e) Minimum pension supplement (Laws No 218 of 4 April 1952, No 638 of 11 November 1983 and No 407 of 29 December 1990). (f) Disability allowance supplement (Law No 222 of 12 June 1984). (g) Monthly allowance for continuous personal assistance for those receiving pensions for incapacity for work (Law No 222 of 12 June 1984). I. LUXEMBOURG (a) Special severe disablement allowance (Law of 16 April 1979). (b) Maternity allowance (Law of 30 April 1980). J. NETHERLANDS None. K. AUSTRIA (a) Compensatory supplement (Federal Act of 9 September 1955 on General Social Insurance - ASVG, Federal Act of 11 October 1978 on Social Insurance for Persons engaged in Trade and Commerce - GSVG, and Federal Act of 11 October 1978 on Social Insurance for Farmers - BSGV). (b) Care allowance (Pflegegeld) under the Austrian Federal Care Allowance Act (Bundespflegegeldgesetz) with the exception of the care allowance granted by accident insurance institutions where the infirmity is caused by an accident at work or occupational disease. L. PORTUGAL (a) Non-contributory family allowances (Decree-Law No 160/80 of 27 May 1980). (b) Nursing mother's allowance (Decree-Law No 160/80 of 27 May 1980). (c) Supplementary allowance for disabled children and young people (Decree-Law No 160/80 of 27 May 1980). (d) Allowance for attendance at special schools (Decree-Law No 160/80 of 27 May 1980). (e) Non-contributory orphan's pension (Decree-Law No 160/80 of 27 May 1980). (f) Non-contributory invalidity pension (Decree-Law No 464/80 of 13 October 1980). (g) Non-contributory old-age pension (Decree-Law No 464/80 of 13 October 1980). (h) Supplementary severe invalidity pension (Decree-Law No 160/80 of 27 May 1980). (i) Non-contributory widow's pension (Regulatory Decree No 52/81 of 11 November 1981). M. FINLAND (a) Child-care allowance (Child-care Allowance Act, 444/69). (b) Disability allowance (Disability Allowance Act, 124/88). (c) Housing allowance for pensioners (Housing Allowance for Pensioners Act, 591/78). 77 (d) Basic unemployment allowance (Unemployment Allowance Act, 602/84) in cases where a person does not qualify for the earnings-related unemployment allowance. N. SWEDEN (a) Municipal Housing Supplements to basic pensions (Law 1962: 392, reprinted 1976: 1014). (b) Invalidity allowance not paid to a person receiving a pension (Law 1962: 381 reprinted 1982: 120). (c) Care allowance for disabled children (Law 1962: 381, republished 1982: 120). O. UNITED KINGDOM (a). (b) Invalid care allowance (Social Security Act 1975 of 20 March 1975, Section 37, and Social Security (Northern Ireland) Act 1975 of 20 March 1975, Section 37). (c) Family credit (Social Security Act 1986 of 25 July 1986, Sections 20 to 22, and Social Security (Northern Ireland) Order 1986 of 5 November 1986, Articles 21 to 23). (d) Attendance allowance (Social Security Act 1975 of 20 March 1975, Section 35, and Social Security (Northern Ireland) Act 1975 of 20 March 1975, Section 35). (e) Income support (Social Security Act 1986 of 25 July 1986, Sections 20 to 22 and Section 23, Social Security (Northern Ireland) Order 1986 of 5 November 1986, Articles 21 to 24). (f) Disability living allowance (Disability Living Allowance and Disability Working Allowance Act 1991 of 27 June 1991, Section 1, and Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991 of 24 July 1991, Article 3). (g) Disability working allowance (Disability Living Allowance and Disability Working Allowance Act 1991 of 27 June 1991, Section 6, and Disability Living Allowance and Disability Working Allowance (Northern Ireland) Order 1991 of 24 July 1991, Article 8). (h) Income-based allowances for jobseekers (Jobseekers Act 1995, 28 June 1995, Sections I(2)(d)(ii) and 3, and Jobseekers (Northern Ireland) Order 1995, 18 October 1995, Articles 3(2)(d)(ii) and 5). 78 ANNEX V A. Legislations referred to in Article 39(1) of the Decision under which the amount of invalidity benefits is independent of the length of periods of insurance A. BELGIUM (a) Legislation relating to the general invalidity scheme, the special invalidity scheme for miners and the special scheme for merchant navy mariners. (b) Legislation relating to invalidity in the overseas social insurance scheme and the invalidity scheme for former employees of the Belgian Congo and Rwanda-Urundi. B. DENMARK None. C. GERMANY None. D. SPAIN Legislation relating to invalidity insurance under the general scheme and under the special schemes. E. FRANCE All legislation on invalidity insurance, except for the legislation concerning the invalidity insurance of the social security scheme for miners. 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. 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. AUSTRIA None. 79 L. PORTUGAL None. M. FINLAND National pensions for persons who are born disabled or become disabled at an early age (National Pensions Act (547/93)). N. SWEDEN None. O. UNITED KINGDOM (a) Great Britain Sections 15 and 36 of the Social Security Act 1975. Sections 14, 15 and 16 of the Social Security Pensions Act 1975. (b) Northern Ireland Sections 15 and 36 of the Social Security (Northern Ireland) Act 1975. Articles 16, 17 and 18 of the Social Security Pensions (Northern Ireland) Order 1975. B. Cases referred to in Article 48(1)(b) of the Decision where the calculation of benefit in accordance with Article 48(2) of the Decision 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 Annex V, Part C. C. GERMANY None. D. SPAIN None. E. FRANCE None. F. GREECE None. G. IRELAND All applications for retirement pensions, contributory old-age pensions and widows' pensions. 80 invalidity, retirement and survivor's pensions in connection with H. ITALY All applications for employed persons. I. LUXEMBOURG None. J. NETHERLANDS All applications for old-age pensions pursuant to the Law of 31 May 1956 on general old-age insurance, as amended. K. AUSTRIA None. L. PORTUGAL All applications for invalidity, old-age and widows' pensions. M. FINLAND None. N. SWEDEN All applications for basic and supplementary old-age pensions, except pensions mentioned in Annex V, Part C. O. UNITED KINGDOM All applications for retirement and widow's pensions determined pursuant to the provisions of Part II, Title II, Chapter 3 of the Decision, with the exception of those for which: (a) during a tax year beginning on or after 6 April 1975: (i) the person concerned had completed periods of insurance, employment or residence under the legislation of the United Kingdom and of another Member State; and (ii) one (or more) of the tax years referred to in (i) was not regarded as a qualifying year within the meaning of the legislation of the United Kingdom; (b) the periods of insurance completed under the legislation in force in the United Kingdom for periods prior to 5 July 1948 would be taken into account for the purposes of Article 48(2) of the Decision by application of the periods of insurance, employment or residence under the legislation of another Member State. C. Benefits and agreements referred to in Article 50(2)(a) of the Decision 1. Benefits referred to in Article 50(2)(a) of the Decision, 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. 81 (b) The Danish full national old-age pension acquired after 10 years' residence by persons awarded a pension by 1 October 1989 at the latest. (c) The Spanish death allowances and survivors' pensions granted under the general and special schemes. (d) the widows' allowance under the widowhood insurance of the French general social security scheme; (e) The widowers' or widows' invalidity pension under the French general social security scheme, when calculated on the basis of the invalidity pension of a deceased spouse, paid in accordance with Article 48(1)(a)(i). (f) The Dutch widows' pension under the Law of 9 April 1959 governing general insurance for widows and orphans, as amended. (g) The Finnish national pensions determined according to the National Pensions Act of 8 June 1956 and awarded under the transitional rules of the National Pensions Act (547/93). (h) The Swedish full basic pension awarded under the basic pension legislation which applied before 1 January 1993 and the full basic pension awarded under the transitional rules of the legislation applying from that date. 2. Benefits referred to in Article 50(2)(b) of the Decision, the amount of which is determined by reference to a credited period deemed to have been completed between the date on which the risk materialised 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) 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) Italian pensions for total incapacity for work (inabilità). (d) Luxembourg invalidity and survivors' pensions. (e) Finnish employment pensions for which account is taken of future periods according to the national legislation. (f) Swedish invalidity and survivors' pensions for which account is taken of a credited period of insurance and Swedish old-age pensions for which account is taken of credited periods already acquired. 3. Agreements referred to in Article 50(2)(b)(i) of the Decision 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. Nordic Convention of 15 June 1992 on social security. 82 SPECIAL PROCEDURES FOR APPLYING THE LEGISLATIONS OF CERTAIN MEMBER STATES ANNEX VI A. BELGIUM (Article 85 of the Decision) 1. For application by the competent Belgian institution of the provisions of Chapters 6 and 7 of Title II, Part 2, of the Decision, a child shall be considered to have been brought up in the Member State in whose territory it resides. 2. For application of Article 48(2) of the Decision, periods of old-age insurance completed under Belgian legislation before 1 January 1945 shall also be considered as periods of insurance completed under the Belgian legislation on the general invalidity scheme and the mariners' scheme. 3. For application of Article 42(3)(a)(ii), account shall be taken only of periods during which the worker was incapable of work within the meaning of Belgian legislation. 4. For application of Articles 72 and 79(1)(a) of the Decision, account shall be taken of periods of employment and/or periods of insurance completed under the legislation of another Member State where entitlement to the condition that, for a specified previous period, the qualifying conditions for family benefits in the framework of the scheme for employed persons have been met. to benefit under Belgian legislation is subject 5. In the calculation of the theoretical amount of an invalidity pension, as referred to in Article 48(2) of the Regulation, the competent Belgian institution shall take as its basis the income received in the occupation last exercised by the person concerned. 6. Any worker who is no longer insured in Belgium under the sickness and invalidity insurance legislation - which makes the grant of the right to benefits also conditional upon the person concerned being insured when the risk materialises - shall be considered to be still insured when the risk materialises, for the purposes of implementation of Title II, Part 2, Chapter 3 of the Decision, if he is insured for the same risk under the legislation of another Member State. 7. Where the person concerned is entitled to a Belgian invalidity benefit under Article 47 of the Decision, that benefit shall be awarded in accordance with the rules laid down by Article 48(2) of the Decision, in accordance with the Law of 9 August 1963 on the establishment and organisation of a compulsory sickness and invalidity insurance scheme, if, at the time of occurrence of the incapacity for work, he was insured for that risk under the legislation of another Member State as an employed person within the meaning of Article 1(a) of the Decision. B. DENMARK 1. Workers, pension claimants and pensioners, and the members of their family referred to in Articles 20, 23(1) and (3), 27(1) and (3), 28(1), 31, 32 and 34 of the Decision, resident or staying in Denmark, shall be entitled to benefits in kind on the same terms as those laid down by Danish legislation for persons who, under the law on the public health service (lov om offentlig sygesikring), are insured in class 1. 2. (a) The provisions of Danish legislation on social pensions stipulating that the right to a pension is subject to the claimant being resident in Denmark shall not be applicable to workers or their survivors who reside in the territory of a Member State other than Denmark. 83 (b) For the purpose of calculating the pension, periods of employment completed in Denmark by a frontier worker or a seasonal worker shall be regarded as periods of residence completed in Denmark by the surviving spouse in so far as the surviving spouse was, during such periods, linked to the frontier worker or seasonal worker by marriage without separation from bed and board or de facto separation on grounds of incompatibility and provided that during these periods the spouse resided in the territory of another Member State. (c) For the purpose of calculating the pension, periods of employment completed in Denmark before 1 January 1984 by a worker other than a frontier worker or seasonal worker shall be regarded as periods of residence completed in Denmark by the surviving spouse, in so far as the surviving spouse was, during such periods, linked to the employed person by marriage without separation from bed and board or de facto separation on grounds of incompatibility, and provided that during these periods the spouse resided in the territory of another Member State. (d) Periods to be taken into account under the terms of subparagraphs (b) and (c) shall not be taken into consideration if they coincide with the periods taken into account for the calculation of the pension due to the person concerned under the legislation on compulsory insurance of another Member State, or with the periods during which the person concerned received a pension under such legislation. These periods shall, however, be taken into consideration if the annual amount of the said pension is less than half the basic amount of the social pension. 3. The provisions of the Decision shall not affect the transitional rules under the Danish laws of 7 June 1972 on the right to a pension of Danish nationals having their effective residence in Denmark for a specified period immediately preceding the date of the claim. However, a pension shall be granted under the conditions laid down for Danish nationals to nationals of other Member States having their effective residence in Denmark during the year immediately preceding the date of claim. 4. (a) The periods during which a frontier worker residing in the territory of a Member State other than Denmark has pursued his gainful activity in the territory of Denmark shall be considered as periods of residence for the purposes of Danish legislation. The same shall apply to periods in which a frontier worker is posted to or provides services in a Member State other than Denmark. (b) The periods during which a seasonal worker residing in the territory of a Member State other than Denmark was employed in the territory of Denmark shall be considered as periods of residence for the purposes of Danish legislation. The same applies to periods during which a seasonal worker is posted to the territory of a Member State other than Denmark. 5. In order to determine whether or not the conditions for entitlement to daily allowances in the event of sickness or maternity, as laid down by the law of 20 December 1989 on daily allowances in the event of sickness or maternity, have been satisfied, where the person concerned is no longer subject to Danish legislation during all the periods of reference stipulated by the abovementioned law: (a) account shall be taken of the periods of insurance or employment completed under the legislation of a Member State other than Denmark during the abovementioned reference periods during which the person concerned was not subject to Danish legislation, as if they are periods completed under the latter legislation, and (b) during the periods thus taken into account, an employed person (in cases where remuneration cannot serve as a basis for calculating the daily allowances) shall be regarded as having had an average remuneration or salary of an amount equal to that on the basis of which 84 the daily allowances are calculated in respect of the periods completed under Danish legislation during the reference periods. 6. Articles 49(3)(d) and 51(1) and (3) of the Decision shall not be applied to pensions awarded in the context of Danish legislation. 7. Where the beneficiary of a Danish retirement pension or early retirement pension is also entitled to a survivor's pension from another Member State, such pensions shall, for the application of Danish legislation, be regarded as benefits of the same kind within the meaning of Article 54(1) of the Decision, provided, however, that the person whose periods of insurance or of residence serve as the basis for calculation of the survivor's pension has also completed periods of residence in Denmark. C. GERMANY 1. The provisions of Article 7 of the Decision shall not affect the provisions under which accidents (and occupational diseases) occurring outside the territory of the Federal Republic of Germany, and periods completed outside that territory, do not give grounds for payment of benefits, or do so only subject to certain conditions, when the persons concerned are resident outside the territory of the Federal Republic of Germany. 2. (a) The standard period for allocation (pauschale Anrechnungszeit) shall be determined exclusively with reference to German periods. (b) For the purpose of taking into account German pension periods for miners' pension insurance, only German legislation shall apply. (c) For the purpose of taking into account German substitute periods (Ersatzzeiten), only German legislation shall apply. 3. If application of the Decision or later decisions on social security places exceptional burdens on certain sickness insurance institutions, such burdens may be compensated for in full or in part. The German Liaison Office for Sickness Insurance-Abroad (Deutsche Verbindungsstelle Krankenversicherung-Ausland), as the sickness insurance liaison body, shall take decisions regarding such compensation by common agreement with the other central federations of sickness funds. The resources necessary to effect such compensation shall be provided by levies on all the sickness insurance institutions in proportion to the average number of their members over the previous year, with the exception of retired members. 4. Article 7 of Volume VI of the Social Code shall apply to nationals of the other Member States and to stateless persons and refugees residing in the territory of the other Member States, according to the following rules. If the general conditions are fulfilled, voluntary contributions may be paid to the German pension insurance scheme: (a) if the person concerned is domiciled or resident in the territory of the Federal Republic of Germany; (b) if the party concerned is domiciled or resident in the territory of another Member State and has at some point previously contributed, either compulsorily or voluntarily, to the German pension insurance scheme; (c) if the party concerned is a national of another Member State, is domiciled or resident in the territory of a third State, has contributed for at least 60 months to the German pension insurance scheme or is eligible for voluntary insurance pursuant to Article 232 of Volume VI of the Social Code, and is not compulsorily or voluntarily insured under the legislation of another Member State. 85 5. Where the benefits in kind which are granted by German institutions of the place of residence to pensioners or members of their family who are insured with competent institutions of other Member States must be refunded on the basis of monthly lump sums, such benefits shall, for the purpose of financial equalisation among German institutions for sickness insurance of pensioners, be regarded as benefits chargeable to the German sickness insurance scheme for pensioners. The lump sums refunded to the German institutions of the place of residence by the competent institutions of the other Member States shall be regarded as receipts to be taken into account in the aforementioned financial equalisation. 6. For the purpose of applying German legislation on compulsory sickness insurance of pensioners as provided for in Article 5(1)(11) of Volume V of the Social Insurance Code (Fünftes Buch Sozialgesetzbuch - SGB V) and Article 56 of the Sickness Insurance Reform Law (Gesundheitsreformgesetz), periods of insurance or residence completed under the legislation of another Member State during which the person concerned was entitled to sickness benefits in kind shall be taken into account, in so far as is necessary, as periods of insurance completed under German legislation, provided they do not overlap with periods of insurance completed under that legislation. and Articles 200(2) 7. For the award, to insured persons residing in the territory of another Member State, of cash benefits pursuant to Article 47(1) of Volume V of the German Social Insurance Code (SGB V) Insurance (Reichsversicherungsordnung - RVO), the German institutions shall determine the net remuneration to be taken into account for calculation of the benefits as though such insured persons resided in the Federal Republic of Germany. the German Law on Social and 561(1) of 8. For the award of benefits to persons requiring in-depth and constant care under Articles 53 et seq. of Volume V of the German Social Insurance Code (SGB V), the institution of the place of residence shall, for the provision of assistance in the form of benefits in kind, take account of periods of insurance, employment or residence completed under the legislation of another Member State as if they were periods completed under the legislation applicable to that institution. 9. A person in receipt of a pension under German legislation and a pension under the legislation of another Member State shall be deemed, for the purposes of applying Article 29 of the Decision, to be entitled to sickness and maternity benefits in kind if, under Article 8(1)(4) of Volume V of the German Social Insurance Code (SGB V), that person is exempted from compulsory sickness insurance (Krankenversicherung). 10. A period of insurance for child-rearing under German legislation is valid even for a period during which the employed person concerned brought up the child in another Member State, provided that person was unable to engage in employment by virtue of Article 6(1) of the Protection of Mothers Law (Mutterschutzgesetz) or took parental leave under Article 15 of the Federal Child-rearing Allowance Law (Bundeserziehungsgeldgesetz) and did not engage in any minor (geringfügig) employment within the meaning of Article 8 of SGB IV. D. SPAIN 1. The condition either of pursuing activity as an employed person or of having previously been compulsorily insured against the same contingency under a scheme organised for the benefit of employed persons of the same Member State, laid down in Article 1(a)(iv) of the Decision, may not be invoked against persons who, in accordance with the provisions of Royal Decree No 2805/1979 of 7 December 1979, are affiliated voluntarily to the general social security scheme in their capacity as an official or employee serving an international intergovernmental organisation. 2. The provisions of Royal Decree No 2805/1979 of 7 December 1979 shall apply to nationals of the Member States and of Tunisia: (a) where they are resident in Spanish territory, 86 or (b) where they are resident in the territory of another Member State and where they have been previously, at some time, compulsorily affiliated to the Spanish social security scheme, or (c) where they are resident in the territory of a third State and have paid contributions for at least 1 800 days to the Spanish social security scheme and where they are not insured either compulsorily or voluntarily by virtue of the legislation of another Member State. 3. Any worker who is no longer insured under Spanish legislation shall be considered to be still insured, at the time the risk materialises, for the purposes of implementing the provisions of Title II, Part 2, Chapter 3 the Decision, if he is insured under the legislation of another Member State at the time the risk materialises or, failing that, where a benefit is due for the same risk under the legislation of another Member State. The latter condition shall be considered to be fulfilled, however, in the case referred to in Article 53(1). 4. (a) For application of Article 52 of the Decision, the calculation of the theoretical Spanish benefit shall be carried out on the basis of the actual contributions made by 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 revalorisations calculated for each year after and up to the year preceding the materialisation of the risk for pensions of the same kind. E. FRANCE 1. (a) The allowance for elderly employed persons and the agricultural old-age allowance shall be granted, under the conditions laid down for French workers by French legislation, to all employed persons who are Tunisian nationals and who, at the time of making their claim, are resident in French territory. (b) The same shall apply to refugees and stateless persons. (c) The provisions of the Decision shall not affect the provisions of French legislation under which only periods of activity as an employed person or of activity treated as such in the territory of the European and overseas departments (Guadeloupe, Guyana, Martinique and Réunion) of the French Republic shall be taken into consideration for acquisition of the right to the allowance for elderly employed persons. 2. The special allowance and cumulative indemnity provided for by the special legislation on social security in mines shall be awarded only to workers employed in French mines. 3. Law No 65-555 of 10 July 1965 which grants to French nationals who are pursuing, or who have pursued, gainful activity abroad the right to join the voluntary old-age insurance scheme, shall apply to Tunisian nationals under the following conditions: - the gainful activity giving rise to voluntary insurance under the French scheme must not be pursued in French territory nor in Tunisian territory; - the employed person must produce evidence, when making his claim, either that he has resided in France for at least 10 years, consecutive or not, or that he has been continuously subject to French legislation on a compulsory or optional basis for the same length of time. 4. A person who is subject to French legislation pursuant to Article 12(1)(e) of the Decision shall be entitled, in respect of the members of his family accompanying him in the territory of the Member State in which he is working, to the following family benefits: 87 (a) the allowance for young children provided until the age of three months; (b) the family benefits provided in accordance with Article 73 of the Decision. 5. For calculation of the theoretical amount, referred to in Article 48(2)(a) of the Decision, in schemes in which old-age pensions are calculated on the basis of retirement points, the competent institution shall take into account, in respect of each of the years of insurance completed under the legislation of any other Member State, the number of retirement points arrived at by dividing the number of retirement points acquired under the legislation it applies by the number of years corresponding to those points. 6. (a) Frontier workers who pursue their activity as employed persons in the territory of a Member State other than France and who reside in the French departments of Haut-Rhin, Bas- Rhin and Moselle, shall be entitled in the territory of those departments to the benefits in kind provided for by the local Alsace-Lorraine scheme set up by Laws No 46-1428 of 12 June 1946 and No 67-814 of 25 September 1967, pursuant to Article 19 of the Regulation. (b) These provisions shall apply by analogy to those entitled under Articles 32(2) and (3) and 33 of the Decision. 7. Notwithstanding Articles 73 and 74 of the Decision, the housing allowances, the home child-care allowance and the parental child-rearing allowance shall be granted only to the persons concerned and to members of their family residing in French territory. 8. Any employed person who is no longer subject to French legislation governing widowhood insurance under the French general social security scheme or the agricultural workers' scheme shall be deemed to have the status of an insured person under such legislation when the risk materialises, for the purposes of applying the provisions of Title II, Part 2, Chapter 3 of the Regulation, if that person is insured as an employed person under the legislation of another Member State at the time the risk materialises or, failing that, in cases where a survivor's benefit is due pursuant to 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 53(1). F. GREECE 1. Law No 1469/84 concerning voluntary affiliation to the pension insurance scheme for Greek nationals and foreign nationals of Greek origin, is applicable to nationals of other Member States, stateless persons and refugees residing in the territory of a Member State in accordance with the second subparagraph. Subject to the other conditions of that law being met, contributions may be made: (a) where the person concerned is domiciled or resides in the territory of a Member State and has at some time in the past been compulsorily affiliated to the Greek pension insurance scheme, or (b) regardless of the place of domicile or residence, where the person concerned has either previously resided in Greece for 10 years, consecutive or not, or has previously been affiliated to the Greek scheme, whether compulsorily or voluntarily, for a period of one thousand five hundred days. 2. Contrary to the relevant legislation applied by the OGA, the pension periods due in respect of an accident at work or of an occupational disease as defined in the legislation of Member States, which makes separate provision for such risks, provided that they coincide with periods of employment in the agricultural sector in Greece, shall be regarded as periods of 88 insurance under the legislation applied by the OGA within the meaning specified in Article 1(o) of the Decision. 3. In the context of Greek legislation, the application of Article 54(2) of the Decision is subject to the condition that the recalculation referred to in the aforementioned Article shall not adversely affect the interests of the person concerned. 4. Where the rules of the Greek auxiliary pension funds make provision for the recognition of compulsory old-age pension insurance periods completed with basic statutory Greek insurance institutions, those rules shall also apply to compulsory insurance periods in the said branch completed under the legislation of any other Member State falling under the matters covered by the Regulation. 5. Workers who were compulsorily affiliated until 31 December 1992 to a compulsory insurance scheme of another Member State, and who were subject to compulsory Greek insurance (basic statutory scheme) for the first time after 1 January 1993, shall be regarded as 'previous-scheme insured persons' in accordance with the provisions of Law No 2084/92. G. IRELAND 1. Employed persons, unemployed persons, pension claimants and pensioners, together with the members of their family, as referred to in Articles 20(1), 23(1) and (3), 27(1) and (3), 28(1), 31, 32 and 34 of the Decision, who are residing or staying in Ireland, shall be entitled free of charge to all medical treatment provided for by Irish legislation where the cost of such treatment is payable by the institution of a Member State other than Ireland. 2. The family members of a worker who is subject to the legislation of a Member State other than Ireland and who satisfies the conditions laid down by that legislation for entitlement to benefits, account being taken, where appropriate, of Article 19 of the Decision, shall be entitled free of charge, if they are resident in Ireland, to all medical treatment provided for by Irish legislation. The cost of such benefits shall be payable by the institution with which the worker is insured. However, where the spouse of the worker or the person looking after the children pursues a gainful activity in Ireland, benefits provided to members of the family shall remain payable by the Irish institution to the extent that entitlement to such benefits is granted solely under the provisions of Irish legislation. 3. If a worker subject to Irish legislation has left the territory of a Member State to proceed, in the course of his employment, to the territory of another Member State and falls victim to an accident before arriving there, his entitlement to benefit in respect of the said accident shall be established: (a) as if the accident had occurred in the territory of Ireland, and (b) without determining whether, by virtue of his employment, he was insured under the said legislation. taking into consideration his absence from the territory of Ireland, when 4. For the purpose of calculating the earnings for granting the pay-related benefit payable under Irish legislation in respect of unemployment benefits, an amount equal to the average weekly wage in that year of male or female workers, as applicable, shall, notwithstanding Article 25(1) of the Decision, be credited to the employed person in respect of each week of employment completed as an employed person under the legislation of another Member State during the relevant income tax year. 89 5. In applying Article 42(3)(a)(ii), account shall be taken only of periods during which the employed person was incapable of work within the meaning of Irish legislation. 6. For the purposes of Article 46(2), a worker shall be deemed to have expressly asked for postponement of the award of an old-age pension to which he would be entitled under the legislation of Ireland if, where retirement is a condition for receiving the old-age pension, he has not retired. 7. A period of subjection to Irish legislation in accordance with Article 11(2)(c) of the Decision may not: (i) be taken into account under that provision as a period of subjection to Irish legislation for the purposes of Title II, Part 2, of the Decision, nor (ii) make Ireland the competent State for the provision of benefits provided for in Article 19 or 41(1) of the Decision. H. ITALY None. I. LUXEMBOURG 1. Notwithstanding Article 88(2) of the Decision, periods of insurance or periods treated as such completed by workers under Luxembourg legislation for invalidity, old-age or death pensions insurance either before 1 January 1946, or before an earlier date stipulated by a bilateral convention, shall be taken into consideration for the purpose of applying this legislation only if the person concerned demonstrates that he has completed six months of insurance under the Luxembourg scheme after the date in question. Where several bilateral conventions apply, periods of insurance or periods treated as such shall be taken into consideration as from the earliest of these dates. 2. For the purpose of granting the fixed part of Luxembourg pensions, periods of insurance completed under Luxembourg legislation by workers not residing in Luxembourg territory shall, as from 1 October 1972, be treated as periods of residence. 3. The second subparagraph of Article 23(2) of the Decision shall not affect the provisions of Luxembourg legislation pursuant to which authorisation by the Sickness Fund for treatment abroad cannot be refused where the required treatment cannot be provided in the Grand Duchy. 4. For the purpose of taking the insurance period provided for in Article 171(7) of the Social Insurance Code (Code des Assurances Sociales) into account, the Luxembourg institution shall recognise periods of insurance completed by the person concerned under the legislation of any other Member State as if they were periods completed under the legislation which it administers. Application of the foregoing provision shall be subject to the condition that the person concerned last completed insurance periods under Luxembourg legislation. J. NETHERLANDS 1. Insurance for medical expenses (a) As regards entitlement to benefits in kind under Dutch legislation, persons entitled to benefits in kind shall mean, for the purpose of implementing Chapter 1 of Title II, Part 2, persons who are insured or co-insured under the insurance scheme covered by the Dutch law on sickness insurance funds. 90 (b) For the purposes of Articles 29 to 36 of the Decision, the following pensions shall be treated as pensions payable under the legal provisions mentioned in subparagraphs (b) (invalidity) and (c) (old age) of the declaration of the Kingdom of the Netherlands pursuant to Article 5 of the Regulation: - pensions awarded under the Law of 6 January 1966 (Staatsblad 6) on new rules in respect of civil servants and their survivors (General Act on Civil Service Pensions) (Algemene burgerlijke pensioenwet), - pensions awarded under the Law of 6 October 1966 (Staatsblad 445) on new rules in respect of pensions for military personnel and their survivors (General Act on Military Pensions) (Algemene militaire pensioenwet), - pensions awarded under the Law of 15 February 1967 (Staatsblad 138) on new rules in respect of pensions for employees of the Netherlands Railway Company (NV Nederlandse Spoorwegen) and their survivors (Railway Pensions Act - Spoorwegpensioenwet), - pensions awarded under the regulation governing conditions of employment of the Netherlands Railway Company (Reglement Dienstvoorwaarden Nederlandse Spoorwegen - RDV 1964 NS), - benefits in respect of a pension before the age of 65 under a pension scheme designed to provide old-age assistance to workers and former workers, or benefits in respect of an early retirement pension under a scheme set up by the State or by or under a collective agreement relating to early retirement, or a scheme to be designated by the Sickness Funds Council. (d) Members of the family as referred to in Article 20(2) who reside in the Netherlands and workers and the members of their family as referred to in Article 23(1)(b) and (3) read in conjunction with (1)(b), and Articles 27 and 28 who are entitled to benefits under the legislation of another Member State shall not be insured under the Law on General Insurance against Special Medical Expenses (Algemene Wet Bijzondere Ziektekosten, AWBZ). 2. Application of Dutch legislation on general old-age insurance (Nederlandse Algemene Ouderdomswet, AOW) (a) The reduction referred to in Article 13(1) of the AOW shall not be applied for calendar years or parts thereof before 1 January 1957 during which a recipient, not satisfying the conditions permitting him to have such years treated as periods of insurance, resided in the territory of the Netherlands between the ages of 15 years and 65 years, or during which, whilst residing in the territory of another Member State, he pursued an activity as an employed person in the Netherlands for an employer established in that country. By way of derogation from Article 7 of the AOW, persons who resided or worked in accordance with the abovementioned conditions only prior to 1 January 1957 shall also be regarded as being entitled to a pension. (b) The reduction referred to in Article 13(1) of the AOW shall not apply to calendar years or parts thereof prior to 2 August 1989 during which, between his 15th and 65th birthdays the person who is or was married was not insured under the abovementioned legislation despite being resident in the territory of a Member State other than the Netherlands, if those calendar years or parts thereof coincide, on the one hand, with the periods of insurance completed by the person's spouse under that legislation provided that the couple's marriage subsisted during those periods, and, on the other, with the calendar years or parts thereof to be taken into account under subparagraph (a). By way of derogation from Article 7 of the AOW, such person shall be considered a pensioner. 91 (c) The reduction referred to in Article 13(2) of the AOW shall not apply to calendar years or parts thereof prior to 1 January 1957 during which the spouse of a pensioner who fails to satisfy the conditions for having these years treated as periods of insurance resided in the Netherlands between the spouse's 15th and 65th birthdays or during which, despite being resident in the territory of another Member State, the spouse pursued an activity as an employed person in the Netherlands for an employer established in the Netherlands. (d) The reduction referred to in Article 13(2) of the AOW shall not apply to calendar years or parts thereof prior to 2 August 1989 during which, between his 15th and 65th birthdays, the pensioner's spouse was resident in a Member State other than the Netherlands and was not insured under the abovementioned legislation if these calendar years or parts thereof coincide, on the one hand, with the periods of insurance completed by the pensioner under that legislation provided that the couple's marriage subsisted during those periods, and, on the other, with the calendar years or parts thereof to be taken into account under subparagraph (a). (e) The provisions referred to in (a), (b), (c) and (d) shall be applied only if the pensioner has resided for six years in the territory of one or more Member States after the age of 59 years and for as long as that person is residing in the territory of one of these Member States. (f) By way of derogation from the provisions of Article 45(1) of the AOW, and Article 47(1) of the law on general insurance for widows and orphans (AWW), the spouse of a worker covered by the compulsory insurance scheme, residing in a Member State other than the Netherlands, shall be authorised to take out voluntary insurance under that legislation but only for the periods after 2 August 1989 during which the worker is or was compulsorily insured under the abovementioned legislation. This authorisation ceases on the date of termination of the worker's compulsory insurance. The aforementioned authorisation shall not expire, however, where the compulsory insurance of the worker is terminated as a result of his death and where his widow receives only a pension under the AWW. In any event, the authorisation in respect of voluntary insurance shall expire on the date on which the voluntarily insured person reaches the age of 65 years. The contribution to be paid by the spouse of a worker compulsorily insured under the Dutch legislation on general old-age insurance and the Dutch legislation on general insurance for widows and orphans shall be established in accordance with the provisions relating to determination of the compulsory insurance contribution, subject to the condition that the spouse's income shall be deemed to have been received in the Netherlands. For the spouse for a worker who became compulsorily insured on or after 2 August 1989, the contribution shall be determined in accordance with the provisions relating to determination of the contribution for voluntary insurance under the Dutch legislation on general old-age insurance and the Dutch legislation on general insurance for widows and orphans. (g) The authorisation referred to in (f) shall be granted only if the spouse of the worker has informed the Sociale Verzekeringsbank (Social Insurance Bank), not later than one year after commencement of the latter's compulsory insurance period, of his/her intention to take out voluntary insurance. For the spouse of a worker who became compulsorily insured immediately prior to or on 2 August 1989, the period of one year shall commence on 2 August 1989. The authorisation referred to in subparagraph 4 of (f) may not be granted to a spouse not residing in the Netherlands of a worker to whom the provisions of Articles 12(1) or 17 of the Decision apply if that spouse, in accordance with the provisions of Dutch legislation alone, is or was authorised to take out voluntary insurance. 92 (h) Points (a), (b), (c), (d) and (f) shall not apply to periods which coincide with periods which may be taken into account for calculating pension rights under the old-age insurance legislation of a Member State other than the Netherlands or to periods during which the person concerned has drawn an old-age pension under such legislation. (i) For the purposes of Article 48(2) of the Decision, only periods of insurance completed after the age of 15 years under the Dutch General Law on Old-Age Insurance (AOW) shall be considered as periods of insurance. 3. (a) Any worker who is no longer subject to Dutch legislation governing widowhood insurance shall be deemed to be insured under such legislation when the risk materialises, for the purposes of the implementing the provisions of Title II, Part 2, Chapter 3 of the Decision, 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 pursuant to the legislation of another Member State. The latter condition shall be considered to be fulfilled, however, in the case referred to in Article 53(1). (b) Where, pursuant to subparagraph (a), a widow has the right to a widow's pension under the Dutch legislation relating to general insurance for widows and for orphans, that pension shall be calculated in accordance with Article 48(2) of the Decision. For application of these provisions, the periods before 1 October 1959 during which the worker resided in the territory of the Netherlands after attaining the age of 15 years or during which, while still resident on the territory of another Member State, he pursued activity as an employed person in the Netherlands for an employer established in that country, shall also be regarded as periods of insurance completed under the aforementioned Dutch legislation. (c) Account shall not be taken of the periods to be taken into consideration under subparagraph (b), which coincide with periods of insurance completed under the legislation of another Member State in respect of survivors' pensions. (d) For the purposes of Article 48(2) of the Decision, only periods of insurance completed after the age of 15 years under the general insurance scheme for widows and orphans (AWW) shall be taken into account as completed periods of insurance. incapacity for work (WAO) and/or under 4. (a) Any employed person who is no longer insured under the Law of 18 February 1966 relating to insurance against the Law of 11 December 1975 relating to incapacity for work (AAW) shall be considered to be still insured at the time of the materialisation of the risk, for the purposes of implementing the provisions of Title II, Part 2, Chapter 3 of the Decision, if he is insured for the same risk under the legislation of another Member State or, failing that, if 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 53(1). (b) If, pursuant to subparagraph (a), the person concerned is entitled to a Dutch invalidity benefit, that benefit shall be awarded in accordance with rules laid down by Article 48(2) of the Decision: (i) in accordance with the provisions laid down by the abovementioned Law of 18 February 1966 (WAO), if, when the incapacity for work arose, he was insured for that risk under the legislation of another Member State as an employed person within the meaning of Article 1(a) of the Decision; (ii) in accordance with the provisions laid down by the abovementioned Law of 11 December 1975 (AAW) if, when the incapacity for work arose, he: - was insured for that 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 Decision, 93 or - was not insured for that 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 pursuant to the provisions of (i) is less than that resulting from application of the provisions of (ii), the last-mentioned benefit shall be payable. (c) In calculating 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 Dutch 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 by the person concerned after the age of 15 years 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) In calculating the Dutch invalidity benefit pursuant to Article 42(1) of the Decision, the Dutch institutions shall not take into account any supplement to be awarded under the Law on Supplements. The right to such supplement and the amount thereof are calculated only on the basis of the Law on Supplements. 5. Application of Dutch legislation on family allowances (a) A worker to whom Dutch legislation on family benefits becomes applicable during any quarter and who was, on the first day of that quarter, subject to the corresponding legislation of another Member State, shall be regarded as being insured as from that first day under Dutch law. (b) The amount of the family benefits which may be claimed by a worker who is considered, pursuant to (a), as being insured under Dutch legislation on family benefits, shall be fixed in accordance with the arrangements laid down in the implementing decision referred to in Article 91 of the Decision. 6. Application of certain transitional provisions Article 47(1) shall not apply to the assessment of entitlement to benefits under the transitional provisions of the legislations on general old-age insurance (Article 48), on general insurance for widows and orphans and on general insurance against incapacity for work. K. AUSTRIA 1. For the purpose of applying Chapter I, Title II, Part 2 of the Decision, a person receiving a civil servant's pension shall be considered to be a pensioner. 2. For the purpose of applying Article 48(2) of the Decision, increments for contributions to supplementary insurance and the miners' supplementary benefits scheme under Austrian legislation shall be disregarded. In such cases the said increments shall be added to the amount calculated in accordance with Article 48(2) of the Regulation. 3. For the purpose of applying Article 48(2) of the Decision, in applying Austrian legislation the day relevant for a pension (Stichtag) shall be considered to be the date when the risk materialises. 94 4. The application of the provisions of the Decision shall not have the effect of reducing any entitlement to benefits, by virtue of Austrian legislation, with regard to persons whose social security situation has been affected for political or religious reasons or for reasons to do with their family. L. PORTUGAL None. M. FINLAND 1. In order to determine whether the period between the occurrence of the pension contingency and the pensionable age (future period) should be taken into account when calculating the amount of the Finnish employment pension, the periods of insurance or residence completed under the legislation of another State to which this Regulation applies shall be taken into consideration to satisfy the condition relating to residence in Finland. 2. Where a worker pursuing an occupation in Finland has terminated his activity and the contingency occurs during his employment in another State to which the Decision applies and where, according to the Finnish employment pension legislation, the pension no longer includes the period between the contingency and the pensionable age (future period), periods of insurance completed under the legislation of another State to which this Decision applies shall be taken into consideration in respect of the requirements pertaining to the future period as if they were periods of insurance completed in Finland. 3. Where, under Finnish legislation, an institution in Finland is required to pay an increment because of a delay in processing the claim for benefit, a claim submitted to an institution of another State to which this Decision applies shall, for the purpose of applying the provisions of the Finnish legislation relating to such increment, be considered to have been submitted on the date when such claim, along with all necessary enclosures, reaches the competent institution in Finland. N. SWEDEN 1. When applying Article 19(1) for the purpose of establishing a person's entitlement to a parental benefit, periods of insurance completed under the legislation of a State other than Sweden to which this Decision applies shall be treated as periods of contribution determined on the basis of the same average earnings as the periods of insurance completed in Sweden, and shall be added to them. 2. The provisions of the Decision on the aggregation of insurance or residence periods shall not apply to the transitional rules of the Swedish legislation on the right to a more favourable calculation of basic pensions for persons residing in Sweden for a specified period preceding the date of the claim. 3. For the purpose of establishing the entitlement to an invalidity or survivor's pension partly based on future assumed insurance periods, a person shall be considered to meet the insurance and income requirements of Swedish legislation when covered as an employed person by an insurance or residence scheme of another State to which this Decision applies. 4. The years spent caring for young children shall, in accordance with the conditions stipulated by Swedish legislation, be considered as insurance periods to be taken into account for calculating supplementary pensions even when the child and the person concerned are residing in another State to which this Decision applies, provided that the person taking care of the child is on parental leave under the provisions of the Law on the Right to Child Rearing Leave. 95 O. UNITED KINGDOM 1. When a person who is normally resident in Gibraltar, or who has been required, since he last arrived in Gibraltar, to pay contributions under the legislation of Gibraltar as an employed person, applies, as a result of incapacity to work, maternity or unemployment, for exemption from the payment of contributions over a certain period, and asks for contributions for that period to be credited to him, any period during which that person has been working in the territory of a Member State other than the United Kingdom shall, for the purposes of his application, be regarded as a period during which he has been employed in the territory of Gibraltar and for which he has paid contributions as an employed person in accordance with the legislation of Gibraltar. 2. Where, in accordance with United Kingdom legislation, a person may be entitled to a retirement pension if: (a) the contributions of a former spouse are taken into account as if they were that person's own contributions, (b) the relevant contribution conditions are satisfied by that person's spouse or former spouse, then provided, in each case, that the spouse or former spouse is or was an employed or self- employed person who had been subject to the legislation of two or more Member States, the provisions of Title II, Part 2, Chapter 3 of the Decision shall apply in order to determine his entitlement to a pension under United Kingdom legislation. In this case, references in the said Chapter 3 to 'periods of insurance' shall be construed as references to periods of insurance completed by: (i) a spouse or former spouse, where a claim is made by a married woman, a widower or a person whose marriage has terminated otherwise than by the death of the spouse, or (ii) a former spouse, where a claim is made by a widow, who was not in receipt of a survivor's benefit immediately before reaching pensionable age or who is only in receipt of an age- related widow's pension calculated pursuant to Article 48(2) of the Decision. 3. The widow's payment provided under United Kingdom legislation shall be treated, for the purposes of Title II, Part 2, Chapter 3 of the Decision, as a survivor's pension. 4. For the purposes of applying Article 8(2) to the provisions governing entitlement to attendance allowance, invalid care allowance and disability living allowance, a period of employment, self-employment or residence completed in the territory of a Member State other than the United Kingdom shall be taken into account insofar as is necessary to satisfy conditions as to presence in the United Kingdom, prior to the day on which entitlement to the benefit in question first arises. 5. In the event of an employed person subject to United Kingdom legislation being the victim of an accident after leaving the territory of one Member State while travelling, in the course of this employment, to the territory of another Member State, but before arriving there, his entitlement to benefits in respect of that accident shall be established: (a) as if the accident had occurred in the territory of the United Kingdom, and (b) for the purpose of determining whether he was an employed earner under the legislation of Great Britain or the legislation of Northern Ireland or an employed person under the legislation of Gibraltar, by disregarding his absence from those territories. 96 6. The Decision shall not apply to those provisions of United Kingdom legislation which are intended to bring into force any social security agreement concluded between the United Kingdom and a third State. 7. For the purposes of Title II, Part 2, Chapter 3 of the Decision no account shall be taken of graduated contributions paid by the insured person under United Kingdom legislation or of graduated retirement benefits payable under that legislation. The amount of the graduated benefits shall be added to the amount of the benefit due under the United Kingdom legislation as determined in accordance with the said chapter, the total of these two amounts thus constituting the benefit actually due to the person concerned. the purpose of applying the Non-Contributory Social 8. For Insurance Benefit and Unemployment Insurance Ordinance (Gibraltar), any person to whom this Decision is applicable shall be deemed to be ordinarily resident in Gibraltar if he resides in a Member State. 9. For application of Articles 7, 29, 30, 31, 32, 33 and 34 of the Decision, the attendance allowance granted to a worker under UK legislation shall be regarded as an invalidity benefit. 10. For application of Article 7(1) of the Decision, any beneficiary under United Kingdom legislation who is staying in the territory of another Member State shall, during that stay, be considered to have resided in the territory of that other Member State. 11. 1. For the purpose of calculating the earnings factor with a view to determining the right to benefits under United Kingdom legislation, subject to point 13, each week during which a worker has been subject to the legislation of another Member State and which commenced during the relevant income tax year within the meaning of United Kingdom legislation shall be taken into account in the following way: (a) periods from 6 April 1975 to 5 April 1987: for each week of insurance, employment or the person concerned shall be deemed to have paid residence as an employed person, contributions as an employed earner on the basis of earnings equivalent to two-thirds of that year's upper earnings limit; (b) periods from 6 April 1987: for each week of insurance, employment or residence as an employed person, the person concerned shall be deemed to have received, and paid contributions as an employed earner for, weekly earnings equivalent to two-thirds of that week's upper earnings limit; (c) for each full week during which he has completed a period treated as a period of insurance, employment or residence, the person concerned shall be deemed to have had contributions or earnings credited to him as appropriate, but only to the extent required to bring his total earnings factor for that tax year to the level required to make that tax year a reckonable year within the meaning of the United Kingdom legislation governing the crediting of contributions or earnings. 11. 2. For the purposes of Article 48(2)(b) of the Decision, where: (a) if in any income tax year starting on or after 6 April 1975, an employed person has completed periods of insurance, employment or residence exclusively in a Member State other than the United Kingdom, and the application of paragraph 1(a)(i) or paragraph 1(b)(i) results in that year being counted as a qualifying year within the meaning of United Kingdom legislation for the purposes of Article 48(2)(a) of the Decision, he shall be deemed to have been insured for 52 weeks in that year in that other Member State: (b) any income tax year starting on or after 6 April 1975 does not count as a qualifying year within the meaning of United Kingdom legislation for the purposes of Article 46(2)(a) of the Regulation, any periods of insurance, employment or residence completed in that year shall be disregarded. 97 11. 3. For the purpose of converting an earnings factor into periods of insurance, the earnings factor obtained in the relevant income tax year within the meaning of United Kingdom legislation shall be divided by that year's lower earnings limit. The result shall be expressed as a whole number, any remaining fraction being ignored. The figure so calculated shall be treated as representing the number of weeks of insurance completed under United Kingdom legislation during that year provided that such figure shall not exceed the number of weeks during which in that year that person was subject to that legislation. 12. In applying Article 42(3)(a), account shall be taken only of periods during which the worker was incapable of work within the meaning of United Kingdom legislation. 13. 1. For the purpose of calculating, under Article 48(2)(a) of the Decision, the theoretical amount of that part of the pension which consists of an additional component under United Kingdom legislation: (a) the expression 'earnings', 'contributions' or 'increases' in Article 52(1)(b) of the Decision shall be construed as meaning surpluses in earnings factors as defined in the Social Security Pensions Act 1975 or, as the case may be, the Social Security Pensions (Northern Ireland) Order 1975; (b) an average of the surpluses in earnings factors shall be calculated in accordance with Article 52(1)(b) of the Decision, as construed in subparagraph (a) above, by dividing the aggregated surpluses recorded under United Kingdom legislation by the number of income tax years within the meaning of United Kingdom legislation (including parts of years) completed under that legislation since 6 April 1978 during the relevant period of insurance. 13. 2. The expression 'periods of insurance and residence' in Article 48(2) of the Decision shall be construed, for the purpose of calculating the amount of that part of the pension which consists of an additional component under United Kingdom legislation, as meaning periods of insurance and residence which have been completed since 6 April 1978. 14. For the purposes of entitlement to severe disablement allowance, any worker who is, or has been, subject to United Kingdom legislation in accordance with Title I, Part 2 of the Decision, excluding Article 11(2)(c): (a) shall, for the entire period during which he pursued activity as an employed person and was subject to United Kingdom legislation whilst present or resident in another Member State, be treated as having been present or resident in the United Kingdom; (b) shall be entitled to have periods of insurance as an employed person completed in the territory and under the legislation of another Member State treated as periods of presence or residence in the United Kingdom. 15. A period of subjection to United Kingdom legislation in accordance with Article 11(2)(c) of the Regulation may not: (i) be taken into account under that provision as a period of subjection to United Kingdom legislation for the purposes of Title II, Part 2 of the Decision, nor (ii) make the United Kingdom the competent State for the provision of the benefits provided for in Article 19, 40 or 41(1) of the Decision. 16. Subject to any conventions concluded with Member States, for the purposes of Article 11(2)(c) of the Decision, United Kingdom legislation shall cease to apply, at the end of the day which is the latest of the following three days, to any person previously subject to United Kingdom legislation as an employed person: 98 (a) the day on which residence is transferred to the other Member State referred to in Article 11(2)(c); (b) the day of cessation of activity as an employed person, whether permanent or temporary, during which that person was subject to United Kingdom legislation; (c) the last day of any period of receipt of United Kingdom sickness or maternity benefit (including benefits in kind for which the United Kingdom is the competent State) or unemployment benefit which: (i) began before the date of transfer of residence to another Member State or, if later, (ii) immediately followed the pursuit of activity as an employed person in another Member State while that person was subject to United Kingdom legislation. 17. The fact that a person has become subject to the legislation of another Member State in accordance with Article 11(2)(c) of the Decision, and with point 19, shall not prevent: (a) the application to him by the United Kingdom, as the competent State, of the provisions relating to workers set out in Title II, Part 2, Chapter 1 and Chapter 2, Section 1, and Article 42(2) of the Decision if he remains an employed person for those purposes and was last so insured under the legislation of the United Kingdom; (b) his being treated as an employed person for the purposes of Chapters 6 and 7 of Title II, Part 2 of the Decision, provided that the UK benefit under Chapter 1 of Title II is payable to him in accordance with subparagraph (a). 99