Decision No 96 of 15 March 1974 concerning the revision of rights to benefit pursuant to Article 49 (2) of Council Regulation (EEC) No 1408/71

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,

Having regard to Article 81 (a) of Regulation (EEC) No 1408/71 under which it is made responsible for dealing with all questions of interpretation arising from Regulations (EEC) No 1408/71 and (EEC) No 574/72;

Whereas Decision No 41, published in Official Journal of the European Communities No 32 of 4 March 1963, has been rendered invalid by the entry into force of Regulations (EEC) No 1408/71 and (EEC) No 574/72; whereas, however, taking into account the provisions of the said Regulations, there are grounds for adopting a new Decision;

Whereas it is essential to ascertain:

(a) whether, when a benefit is being reviewed under Article 49 (2) of Regulation (EEC) No 1408/71, the reviewing institution should take into account periods of insurance or of residence completed after the commencement of entitlement to the initial benefit, either in the country in which the competent institution is situated or in another Member State,

(b) whether, for the determination of rights under the legislation of the country whose qualifying conditions have been satisfied, account should be taken of any periods of insurance or of residence completed, after the commencement of entitlement to the initial benefit, in the country under whose legislation this benefit has been awarded;

Whereas the review provided for in Article 49 (2) of Regulation (EEC) No 1408/71 takes the form of a recalculation in accordance with the provisions of Article 46 of the said Regulation in respect of all the legislations whose qualifying conditions have been satisfied;

Whereas under the provisions of Article 46 (2) (b) of Regulation (EEC) No 1408/71 the amount of benefit is established by each of the institutions concerned on the basis of the amount of benefit to which the person concerned would have been entitled if all periods of insurance or residence had been completed solely under the legislation administered by it, this amount being reduced pro rata with the length of the periods of insurance or residence completed before the occurrence of the event insured against under that legislation in relation to the total length periods completed, beforre the occurrence of that event, under the legislations of all the Member States concerned;

Whereas, pursuant to Article 49 of Regulation (EEC) No 1408/71, for each review of benefit the day on which the event occured in the Member State whose conditions for the commencement of entitlement were last satisfied should be considered as the day on which the event occurred;

Whereas under the definition given in Article 1 (r) and (s) (a) of Regulation (EEC) No 1408/71 only periods of insurance or residence defined or recognized as insurance periods and periods treated as such which are regarded as equivalent to periods of insurance or residence by the legislation of the Member State under which they were completed should be taken into consideration for the purpose of aggregation by the institutions of other Member States;

Acting in accordance with the provisions of Article 80 (3) of Regulation (EEC) No 1408/71,

HAS DECIDED:

Article 1

Any institution which, pursuant to Article 49 (2) of Regulation (EEC) No 1408/71, reviews a benefit previously awarded by it shall be bound to take into account:

(a) for the calculation of the theoretical amount,

(b) in the numerator and the denominator of the fraction representing the pro rata referred to in Article 46 (2) (b) of Regulation (EEC) No 1408/71,

the periods of insurance or residence completed, after the commencement of entitlement to the initial benefit, under the legislation which it administers, in so far as such periods are likely to be taken into consideration under the said legislation.

Article2

Any institution which, pursuant to Article 49 (2) of Regulation (EEC) No 1408/71, reviews a benefit previously awarded by it shall be bound to take into account:

(a) for the calculation of the theoretical amount,

(b) in the denominator of the fraction representing the pro rata referred to in Article 46 (2) (b) of Regulation (EEC) No 1408/71,

the periods of insurance or residence completed, after the commencement of entitlement to the initial benefit, under the legislation of any other Member State concerned, in so far as such periods are likely to be taken into consideration under the said legislation.

Article3

For the determination of rights under the legislation of the Member State whose qualifying conditions have been satisfied, account shall be taken:

(a) for the calculation of the theoretical amount,

(b) in the denominator of the fraction representing the pro rata referred to in Article 46 (2) (b) of Regulation (EEC) No 1408/71,

of the periods of insurance or residence completed, after the commencement of entitlement to the initial benefit, in the Member State or Member State under whose legislation this benefit was previously awarded, in so far as such periods are likely to be taken into consideration under this latter legislation.

Article4

This Decision shall be published in the Official Journal of the European Communities. It shall enter into force for the six original Member States on 1 October 1972 and, in accordance with the Treaty of Accession, from 1 April 1973 for the three new Member States.

The Chairman

of the Administrative Commission

K.Jantz