31974Y0720(07)

DECISION No 91 of 12 July 1973 concerning the interpretation of Article 46 (3) of Council Regulation (EEC) No 1408/71 relating to the award of benefits due under paragraph 1 of the said Article

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 the duty of the Administrative Commission to deal with all questions of interpretation arising from Regulations (EEC) No 1408/71 and (EEC) No 574/72;

Having been asked whether the adjustment provided for in Article 46 (3), second subparagraph, of Regulation (EEC) No 1408/71 applies only to amounts of benefits calculated in accordance with Article 46 (1), first subparagraph, which exceed the amount of the benefits that would have been obtained by applying, in accordance with the second subparagraph of Article 46 (1), the rules provided for in paragraphs 2 (a) and (b) of this Article, or whether it applies also to the latter amounts when these are equal to or higher than the former amounts;

Whereas the application of the rules laid down by Article 46 (2) (a) and (b) of Regulation (EEC) No 1408/71 gives the same result as that which would have been obtained by applying Article 28 (1) (b) of Regulation No 3 ; whereas the latter Regulation did not provide for the possibility of reducing the amount thus obtained;

Whereas the aim of replacing Regulation No 3 by Regulation (EEC) No 1408/71 was in particular to improve the position of workers which arose from the application of Regulation No 3;

Whereas the application of Article 46 (3) to benefits under Article 46 (1) the amount of which is determined pro rata temporis would have the opposite effect;

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

HAS DECIDED AS FOLLOWS:

1. Article 46 (3), second subparagraph of Regulation (EEC) No 1408/71 shall only apply to benefits the amount of which, calculated in accordance with the provisions of paragraph 1, first subparagraph, of this Article, exceeds the amount that would be obtained by applying the rules of paragraphs 2 (a) and (b) of the said Article to the calculation of these benefits.

2. This Decision shall be published in the Official Journal of the European Communities and shall take effect on the date of entry into force of the abovementioned Regulation. It shall be applicable in the six original Member States from 1 October 1972 and, in accordance with the Treaty of Accession, from 1 April 1973 in the three new Member States.

The Chairman of the Administrative Commission

A. TRIER