Decision No 132

of 23 April 1987

concerning the interpretation of Article 40 (3) (a) (ii) of Council Regulation (EEC) No 1408/71 of 14 June 1971

(87/C 271/03)

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 under which it is made responsible for dealing with all administrative questions and questions of interpretation arising from the provisions of Regulation (EEC) No 1408/71 and subsequent Regulations;

Having regard to Article 40 of Regulation (EEC) No 1408/71 relating to the general provisions governing invalidity benefits for employed and self-employed persons subject either exclusively to legislations under which the amount of invalidity benefit is dependent upon the length of insurance periods or residence periods or to legislations of this type and legislations under which the amount of invalidity benefit is not dependent on the length of insurance periods;

Whereas for the determination of the right to invalidity benefit under the legislation of a Member State making the grant of these benefits conditional upon the person concerned having received cash sickness benefit or been unfit for work for a specific period, the competent institutions of this Member State are bound under Article 40 (3) of Regulation (EEC) No 1408/71 to regard this condition as being fulfilled where a worker has during the corresponding period received "invalidity benefits" under the legislation of another Member State;

Whereas a literal interpretation of the words "invalidity benefits" appearing in Article 40 (3) (a) (ii) of Regulation (EEC) No 1408/71 may lead to the exclusion of other benefits that are not called invalidity benefits, such as, in particular, flexible or anticipatory retirement pensions, even though the latter are granted to a person who is an invalid, which would be counter to the intention of the drafters of this Article;

Whereas the term "invalidity benefits" appearing in Article 40 (3) (a) (ii) of Regulation (EEC) No 1408/71 should be understood as meaning "all benefits within the meaning of Chapters 2 and 3 of Title III of the said Regulation granted to a person who is an invalid".

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

HAS DECIDED AS FOLLOWS:

1. The words "invalidity benefits" appearing in Article 40 (3) (a) (ii) of Regulation (EEC) No 1408/71 refer to all benefits, within the meaning of Chapters 2 and 3 of Title III of the said Regulation, granted to a person who is an invalid.

2. This Decision shall be published in the Official Journal of the European Communities. It shall be applicable from the 20th day following its publication.

The Chairman of the Administrative Commission

F. Cassiers

--------------------------------------------------