DECISION No 150

of 26 June 1992

concerning the application of Articles 77, 78 and 79 (3) of Regulation (EEC) No 1408/71 and of Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72

(93/C 229/06)

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

Having regard to Article 81 (a) of Council Regulation (EEC) No 1408/71 of 14 June 1971, under which it is made responsible for dealing with all administrative questions and matters of interpretation arising from the provisions of Regulations (EEC) No 1408/71 and subsequent regulations.

Whereas Decision No 129 of 17 October 1985 should be amended taking account of the Judgment of 11 June 1991 delivered by the Court of Justice of the European Communities, hereinafter referred to as 'the Court of Justice`, in Case C-251/89;

Whereas in this Judgment the Court ruled as follows:

'Where in the cases referred to in Articles 77 (2) (b) (i) and 78 (2) (b) (i) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, in the version as codified by Council Regulation (EEC) No 2001/83 of 2 June 1983, the amount of benefits paid by the Member State of residence is less than the amount of benefits due from another Member State, the pensioner or the orphan of a deceased employed or self-employed person is entitled to receive from the competent institution in the latter Member State a benefit supplement equal to the difference between those two amounts, even where under the legislation of that State the grant of the benefits is subject to the condition that both the claimant and the qualifying child must reside in the national territory.

Entitlement to the supplement to benefits for pensioners' dependent children arises even where the pensioner becomes entitled to a pension under the legislation of the Member State granting more favourable benefits after he has transferred his residence to another Member State from which benefits are due under Article 77 (2) of Regulation (EEC) No 1408/71.

The supplement to benefits for pensioners' dependent children must be granted having regard to all the pensioner's dependent children, including those born after the pensioner transferred his residence to the Member State granting less favourable pensions.

It is the duty of the Administrative Commission on Social Security for Migrant Workers to draw up, pursuant to Article 81 (a) of Regulation (EEC) No 1408/71, a list of institutions in the Member States which are responsible for providing the official information referred to in Decision No 129 of 17 October 1985 concerning the application of Articles 77, 78 and 79 (3) of Regulation (EEC) No 1408/71 and of Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72. Nevertheless, the competent institution of the Member State from which a benefit supplement is claimed may still apply to the Administrative Commission and to the authorities of the Member State in which the claimant resides in order to ascertain the name of the institution in the latter Member State which is competent to provide the official information referred to in Decision No 129.`

Whereas the overlapping of benefits may arise from a contingency providing entitlement to benefits under the legislation of a Member State in accordance with the provisions of Articles 77 and 78 of Regulation (EEC) No 1408/71 and to benefits under the legislation of another Member State, supplemented by Community law;

Whereas, furthermore, the overlapping of benefits due pursuant to Article 77 or 78 of Regulation (EEC) No 1408/71 with family allowances or family benefits due under other legislation is governed, on the one hand, by Article 79 (3) of the aforementioned Regulation where entitlement to family benefits or family allowances accrues from the pursuit of a professional or trade activity and, on the other hand, by Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72 where entitlement to family benefits or family allowances is not dependent on conditions relating to insurance, employment or self-employment; whereas the rules laid down by these provisions are substantially the same;

Whereas, consequently, for the purposes of applying the aforementioned Article 10 (1) (b) (ii), there is reason to take account of the interpretation given by the Court of Justice to the aforementioned Article 79 (3) in its Judgment 100/78;

Whereas, following the Judgment of the Court of Justice in Case C-251/89, the provisions of Decision No 129 should be amended by specifying that a benefit supplement for dependent children of pensioners is due even if the person concerned acquires the right to a pension, under the legislation of the Member State granting the more favourable benefits, after having transferred his residence to another Member State which is competent under the terms of Article 77 (2) of Regulation No 1408/71; whereas it is also essential to specify that a supplement to orphans' benefits as referred to in Article 78 of Regulation No 1408/71 is due even if the orphan has not resided in the Member State granting the more favourable benefits; whereas it is also necessary to specify that the benefit supplement is determined by taking into account all the children or orphans born before or after the transfer of residence, the pursuit of a professional or trade activity or the acquisition of a new right to benefits in accordance with the legislation of the second Member State;

Whereas, following the Judgment of the Court of Justice in Case C-251/89, it is important to specify that if the pensioner or the orphan does not satisfy or no longer satisfy the qualifying conditions for benefit under the legislation of the Member State competent in accordance with the provisions of Articles 77 and 78 but does satisfy the conditions laid down by the legislation of another Member State supplemented by Community law, the latter State shall be bound to pay the full amount of the benefits;

Whereas an Annex should be appended to Decision No 129, listing the institutions responsible for providing the information necessary for calculating this supplement,

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

HAS DECIDED AS FOLLOWS:

1. Where the amount of the benefits referred to in Article 77 (1) of Regulation (EEC) No 1408/71 due under the legislation of a Member State, irrespective of the place of residence of the children, of the beneficiary to a pension or of orphans on the territory of the Community, is higher than the amount of benefits due under the legislation of the Member State competent in accordance with Article 77 (2) of that Regulation, the benefits provided for by the legislation of the first State shall be paid to the pensioner in accordance with the provisions of paragraph 4 of this Decision to the extent that the amount of these benefits exceeds the amount actually received under the legislation of the second Member State. This provision shall be applicable even if the person concerned acquires a right to the grant of a pension under the legislation of the Member State granting the more favourable benefits, after having transferred his residence to the Member State competent in accordance with Article 77 (2) of the said Regulation.

2. Where the amount of the benefits referred to in Article 78 (1) of Regulation (EEC) No 1408/71 due under the legislation of a Member State, irrespective of the place of residence of the orphan on the territory of the Community, exceds the amount of benefits due under the legislation of the Member State competent in accordance with the provisions of Article 78 (2) of the said Regulation, the benefits provided for by the legislation of the first Member State shall be paid to the orphan in accordance with the provisions of paragraph 4 of this Decision to the extent that the amount of these benefits exceeds the amount actually received under the legislation of the second State. This provision shall be applicable even if the orphan has not resided in the first Member State.

3. Article 79 (3) of Regulation (EEC) No 1408/71 and Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72 shall be applied in accordance with the provisions of paragraph 4 of this Decision in such a way that the right to benefits due under the legislation of a Member State pursuant to Article 77 (2) is suspended only up to the amount of family benefits or family allowances actually received under the legislation of another Member State by virtue of the pursuit of a professional or trade activity.

4. In the cases referred to in paragraphs 1, 2 and 3 the competent institution of the first Member State shall award a supplement to the benefits granted under the legislation of the second Member State, equal to the difference between the amount of the benefits actually received under the legislation of the second Member State and the amount of the benefits due under the legislation of the first Member State, irrespective of the place of residence on the territory of the Community.

This supplement shall be determined taking account of all the children or orphans born before or after the transfer of residence, the pursuit of the professional or trade activity or the acquisition of a new right to benefits in accordance with the legislation of a second Member State.

This supplement shall be granted as long as the conditions required for entitlement to benefit under the legislation of the first Member State are satisfied. Where the qualifying conditions for benefit under the legislation of the second Member State are not or are no longer satisfied, the first Member State shall pay, instead of the supplement, the full amount of the benefits due under its legislation, irrespective of the place of residence on the territory of the Community.

5. The amount of the supplement shall be determined for the first time not later than on the expiry of a period of 12 months after the right to benefits has been acquired in the second Member State. Thereafter, the supplement shall be determined at least every 12 months. Where the legislation of a Member State makes the grant of benefits conditional upon the submission of a claim, such claim should also be submitted for the grant of the supplement.

6. The competent institution or institutions of the second Member State shall inform the competent institution or institutions of the other Member State immediately of the date on which the right is acquired under the legislation which these institutions administer and also of the nature and amount of the benefits.

Upon expiry of the period referred to in paragraph 5, the institution or institutions of the second Member State shall inform the institution or institutions of the other Member State of the exact amount of the benefits which were paid by them in the expired period.

7. Once the amount of the supplement has been determined, the supplement shall be granted in accordance with the legislation of the first Member State and in accordance with the provisions of Regulations (EEC) No 1408/71 and (EEC) No 574/72 relating to the benefits in question.

8. Upon expiry of the period referred to in paragraph 5, the institution or institutions of the first Member State shall inform the beneficiary of the decision to award or refuse a supplement and shall indicate:

(a) the amount of benefits due under the legislation of this Member State;

(b) the amount of the benefits actually paid under the legislation of the other Member State;

(c) the amount of any supplement.

9. The institution of the States responsible for providing the information necessary for calculating the supplement referred to in paragraph 4 of this Decision are listed in the Annex to this Decision.

10. The rate of conversion to be applied in order to compare the amounts of the benefits for the purposes of paragraph 8 shall be the rate applicable in accordance with Article 107 (1) to (3) of Regulation (EEC) No 574/72.

For the purposes of this Decision, the institutions shall use the forms used for the purposes of Chapters 7 and 8 of Regulation (EEC) No 1408/71, to which, where appropriate, any further information deemed necessary by any of the institutions concerned shall be added.

11. This Decision, which replaces Decision No 129 of 17 October 1985, shall be published in the Official Journal of the European Communities. It shall enter into force on the first day of the month following its publication in the Official Journal of the European Communities.

The Chairman of the Administrative Commission

Sebastião NOBREGA PINTO PIZARRO

ANNEX

(Paragraph 9 of the Decision)

A. BELGIUM

Employed persons:

Caisse de compensation pour allocations familiales pour travailleurs salariés/Compensatiekas der gezinsvergoedingen voor werknemers (Family, Allowances Compensation Fund for Employed Persons), Bruxelles/Brussel with which the employer is insured

Self-employed persons:

Institut national d'assurances sociales pour travailleurs indépendants/Rijksinstituut voor de sociale verzekeringen der zelfstandigen (National Insurance Institute for Self-employed Persons), Bruxelles/Brussel

B. DENMARK

Socialministeriet (Ministry of Social Affairs), Slotsholmsgade 6, Koebenhavn

C. GERMANY

Bundesanstalt fuer Arbeit (Federal Labour Office), Nuernberg;

The competent local employment offices

D. SPAIN

1. All schemes, with the exception of the mariners' schemes:

Direcciones Provinciales del Instituto Nacional de la Seguridad Social (Provincial directorates of the National Institute of Social Security)

2. Mariners' schemes:

Direccions Provinciales del Instituto Social de la Marina (Provincial directorates of the Social Institute for Mariners)

E. FRANCE

Centre de sécurité sociale des travailleurs migrants (Centre for Social Security for Migrant Workers), 11, rue de la Tour des Dames, Paris

F. GREECE

1. Exclusively for family allowances and family benefits: Ïñãáíéóìueò Áðáó÷ïëÞóaaùò AAñãáôéêïý AEõíáìéêïý (ÏÁAAD), ÁèÞíá, (Labour Employment office, Athens).

2. In the case of an institution which under its own rules grants pension supplements for children or orphans, it is this institution that provides all the necessary information.

3. Where pension supplements for children or orphans are granted by several institutions, all information relating to the implementation of Decision No 150 is provided by IKA - Éaeñõìá Êïéíùíéêþí Áóoeáëssóaaùí, ÁèÞíá (Social Insurance Institute, Athens).

4. For family allowances and pension supplements for children and orphans, the Greek institution responsible for providing the relevant information is always the IKA.

G. IRELAND

1. For the purposes of Articles 77, 78 and 79 (3) of Regulation (EEC) No 1408/71:

Department of Social Welfare, Social Welfare Services Office, Pensions Branch, College Road, Sligo

2. For the purposes of Article 10 (1) (b) (ii) of Regulation (EEC) No 574/72:

Department of Social Welfare, Social Welfare Services Office, Child Benefit Branch, Oliver Plunkett Street, Letterkenny, Co. Donegal

H. ITALY

Local offices (provincial and zonal) of the Istituto nazionale della previdenza sociale, Ufficio liquidazione pensioni (INPS) (National Social Welfare Institution, Office for the payment of pensions)

I. LUXEMBOURG

1. For family allowances:

Caisse nationale des prestations familiales (National Family Benefit Fund), Luxembourg

2. For orphans' pensions:

For manual workers

Établissement d'assurance contre la vieillesse et l'invalidité (Old-Age and invalidity Insurance Institution), Luxembourg

For clerical workers and self-employed members of the professions:

Caisse de pension des employés privés (Pension Fund for clerical staff in the private sector), Luxembourg

For self-employed persons engaged in a craft industry, in trading or in manufacture

Caisse de pension des artisans, des commerçants et industriels (Pension Fund for craftsmen, tradesmen and manufacturers), Luxembourg

For self-employed persons engaged in agriculture

Caisse de pension agricole (Agricultural Pension Fund), Luxembourg

J. NETHERLANDS

Sociale Verzekeringsbank (Social Insurance Bank), Postbus 1100, 1180 BH Amstelveen

K. PORTUGAL

1. For family benefits

- mainland:

Centro Regional de Segurança Social (Regional Centre of Social Security) with which the person concerned was last registered

- Autonomous Region of Madeira:

Direcção Regional de Segurança Social (Regional Directorate of Social Security), Funchal

- Autonomous Region of the Azores:

Direcção Regional de Segurança Social (Regional Directorate of Social Security), Angra do Heroísmo

2. For orphans' pensions

- mainland:

Centro Nacional de Pensões (National Pensions Centre), Lisboa

- Autonomous Region of Madeira:

Direcção Regional de Segurança Social (Regional Directorate of Social Security), Funchal

- Autonomous Region of the Azores:

Direcção Regional de Segurança Social (Regional Directorate of Social Security), Angra do Heroismo

L. UNITED KINGDOM

1. For the purposes of Articles 77, 78 and 79 of Regulation (EEC) No 1408/71:

Great Britain

Department of Social Security, Benefits Agency, Overseas Benefits Directorate, Newcastle-upon-Tyne, NE98 1YX

Northern Ireland (other than increases to Northern Ireland old-age or survivors' benefits payable to persons resident outside Northern Ireland, for which refer to the Newcastle-upon-Tyne address above)

Department of Health and Social Services, Northern Ireland Social Security Agency, Overseas Branch, Belfast BT1 1DX

2. For the purposes of Article 10 of Regulation (EEC) No 574/72:

Great Britain

Department of Social Security, Benefits Agency, Child Benefit Centre, Newcastle-upon-Tyne, NE88 1AA

Northern Ireland

Department of Health and Social Services, Northern Ireland Social Security Agency, Child Benefit Office, Belfast, BT1 1SA