DECISION No 147 of 10 October 1990 concerning the application of Article 76 of Regulation (EEC) No 1408/71 (91/425/EEC)

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 on the application of social security schemes to employed persons, to self-employed persons and to the members of their families moving within the Community, under which it is responsible for dealing with all administrative questions or questions of interpretation arising from the provisions of Regulation (EEC) No 1408/71 and subsequent Regulations,

Having regard to Article 2 (1) of Council Regulation (EEC) No 574/72 of 21 March 1972 under which it is the duty of the Administrative Commission to draw up models of certificates, certified statements, declarations, applications and other documents necessary for the application of the Regulations,

Having regard to Council Regulation (EEC) No 3427/89 of 30 October 1989 amending, in particular, Article 76 of Regulation (EEC) No 1408/71,

Whereas Article 76 now provides, in paragraph 1, that in the case of overlapping of rights to family benefits under the legislation of the competent State and under the legislation of the State of residence of the members of the family, the amount provided for by the legislation of the competent State shall be suspended up to the amount provided for by the legislation of the State of residence of the members of the family, and in paragraph 2 that if an application for benefits is not made in the State of residence, the competent institution of the other State may apply the provisions of paragraph 1 as if benefits were granted in the first State;

Whereas it is therefore necessary to define the procedure or implementing the said Article with regard to the information to be provided by the institution of the place of residence to the competent institution for the purposes of the aforementioned suspension, with regard to the comparison between the amounts provided for by the two legislations concerned, and with regard to the determination of the differential supplement that may have to be paid by the competent institution;

Whereas it is necessary for this purpose to draw up an amended model form E 411;

Whereas the language in which the forms are to be issued has been settled by Recommendation No 15 of the Administrative Commission;

Whereas, finally, it is necessary to specify the rate of conversion of currencies to be used for the purpose of the aforementioned comparison,

HAS DECIDED AS FOLLOWS:

1.(a)If the competent institution does not have at its disposal information showing that an occupation (or activity treated as such within the meaning of Decision No 119) giving entitlement to family benefits is pursued in the State of residence of the members of the family, that institution shall pay the family benefits in full.

(b)In case of doubt, or where there is certainty that an occupation (or activity treated as such within the meaning of Decision No 119) giving entitlement to family benefits in the State of residence of members of the family is pursued, the competent institution may suspend the payment of family benefits. It shall then immediately ask the institution of the place of residence of the members of the family for information concerning the right to family benefits in the State of residence of the members of the family, in accordance with the amended model form E 411 reproduced below.

The competent authorities of the Member States shall place this form at the disposal of the competent institutions concerned. This form shall be available in the official languages of the Community and laid out in such a manner that the different versions are perfectly superposable to enable the person concerned to receive the form in his own language.

(c)The competent institution shall then send form E 411 each year to the institution of the place of residence of the members of the family. The latter institution shall return the form to the competent institution within a period of three months of receiving it.

(d)Upon receipt of the information supplied by the institution of the place of residence, the competent institution shall for each member of the family make a comparison between the amount of family benefits provided by the legislation of the State of residence of the members of the family (indicated in the information certified by the institution of the place of residence) and the amount of family benefits provided for by the legislation which it administers.

(e)After having made the comparison, the competent institution shall, where appropriate, provide a supplement to the benefits provided for by the legislation of the Member State of residence of the members of the family, equal to the difference between the amount of benefit provided for by the said legislation an the amount of benefit due under the legislation of the competent State.

The amount of the supplement shall for the first time be determined not later than twelve months after the acquisition of the right to benefits in the Member State or residence of the members of the family and in the competent State. The supplement shall subsequently be determined at least every twelve months.

If no benefit is provided for, under the legislation which the competent institution administers, for the same member of the family or if the amount for which that legislation makes provision is less than that certified by the institution of the place or residence of the members of the family, the competent institution shall not provide a supplement.

Where benefits are provided for, under its legislation for the same member of the family and where their amount is higher than that certified by the institution of the place of residence of the members of the family, it shall pay the supplement equal to the difference between the two amounts.

If benefits are due under the legislation which the competent institution administers while no benefits are provided for by the legislation of the State of residence for the same member of the family, the said institution shall provide these benefits in full.

The competent institution may aggregate sums due as supplement for the family as a whole before providing the said sums to the persons concerned.

(f)An advance on the differential supplement may be provided by the competent institution. In this case, if it appears subsequently that the amount of the advance exceeds the amount due, the competent institution shall undertake the appropriate regularization by deducting the amount overpaid from the supplement which it provides to the person concerned for the following period.

(g)In the event that no claim for family benefits has been submitted in the State or residence of the members of the family and if the information at the disposal of the institution of the place of residence does not allow it to indicate the amount of family

benefits that would have been due if a claim had been submitted, the said institution shall send to the competent institution the general scale of rates provided for by the legislation which it administers that is in force for the period or periods concerned.

2.For the comparison to be made between the two amounts, the competent institution shall convert to its currency the amount of the family benefits provided for by the legislation of the State or residence of the members of the family, using the rate of conversion referred to in Article 107 (1) of Regulation (EEC) No 574/72. The rate of conversion to be taken into account shall be the rate applicable on the day on which the comparison is made.

3.This Decision shall be applicable from the first day of the month following its publication in the Official Journal of the European Communities.

The Chairman of the Administrative Commission

M. T. FERRARO