Explanatory Memorandum to COM(2006)16 - Procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems

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dossier COM(2006)16 - Procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems.
source COM(2006)16 EN
date 31-01-2006
CONTEXT OF THE PROPOSAL Grounds for and objectives of the proposal Article 89 of Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 provides that a further Regulation shall lay down the procedure for implementing the said Regulation. General context The rules on the coordination of national social security systems fall within the framework of free movement of persons and should help to improve the standard of living and conditions of employment of EU citizens moving within the Union. These systems are currently coordinated by Regulation (EEC) No 1408/71 and its implementing regulation, Regulation (EEC) No 574/72. Regulation (EC) No 883/2004 is intended to replace Regulation (EEC) No 1408/71. However, the new rules on coordination in Regulation (EC) No 883/2004 cannot be applied until the corresponding implementing regulation has been adopted to replace Regulation (EEC) No 574/72. With regard to form, the proposed legislative instrument corresponds to that which is currently in place. With regard to content, its objective is to modernise and simplify the existing rules. Existing provisions in the area of the proposal Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71, as last amended by Regulation (EC) No 647/2005 of the European Parliament and of the Council of 13 April 2005, OJ L 117 of 4 May 2005. Similarity: both Regulation (EEC) No 574/72 and this proposal are intended to lay down the procedure for implementing the Regulation coordinating social security systems. Difference: this proposal is intended to simplify and modernise the provisions of Regulation (EEC) No 574/72 by strengthening cooperation between social security institutions and improving the methods of data exchange between social security institutions. Consistency with other policies and objectives of the Union Not applicable. CONSULTATION OF INTERESTED PARTIES AND IMPACT ASSESSMENT Consultation of interested parties Consultation methods, main sectors targeted and general profile of respondents The proposal for an implementing regulation is essentially intended to define the procedures needed to implement the principles of the basic Regulation for users of the Regulation, EU citizens and Member States’ social security institutions. For example, in the area of old-age pensions, it is necessary to specify what steps the insured person must take in order to apply for payment of his/her pension, to which institution the claim must be submitted (where the insured person has worked in several Member States), how the institutions are to exchange information to ensure that the insured person’s full career is taken into account, and how each institution is to calculate the pension to be paid for the relevant period. In order to draw up concrete proposals on the most effective way of organising daily cooperation between the institutions for those with entitlements under Regulation (EC) No 883/2004, many social security experts in the Member States were consulted, mainly in order to seek expertise at the most appropriate level, in particular from the social security institutions. To this end, several working groups were set up corresponding to the various risks covered by the social security systems: sickness, accidents at work, occupational diseases, invalidity, old age, unemployment, family benefits. In addition, the Commission, in its capacity as secretariat of the Administrative Commission on Social Security for Migrant Workers (CASSTM), and of CASSTM’s Technical Commission and Audit Board, is in close and constant contact with the experts appointed by the Member States in relation to the application of coordination rules. Summary of responses and how they have been taken into account Expert working groups held meetings and a cross-sectional group which was given the more specific task of drawing up proposals concerning the structure and overall tone of the implementing regulation submitted an informal summary report setting out guidelines. The vast majority of these guidelines were followed in the proposal. Collection and use of expertise Scientific/expertise domains concerned Social security. Methodology used Working groups of social security experts from the various branches: sickness, accidents at work, occupational diseases, invalidity, old age, unemployment, family benefits. Main organisations/experts consulted Many social security experts in the Member States were consulted, mainly in order to seek expertise at the most appropriate level, in particular from the social security institutions. To this end, several working groups were set up corresponding to the various risks covered by the social security systems: sickness, accidents at work, occupational diseases, invalidity, old age, unemployment, family benefits. Summary of advice received and used The existence of potentially serious risks with irreversible consequences was not mentioned. Necessity of simplifying procedures for the users of the Regulation, the social security institutions, the competent authorities, employers and insured persons, employees and self-employed workers, and of clarifying the rights and obligations of these various groups involved in the coordination of social security systems. Means used to make the expert advice publicly available As the subject matter is technical and the expert advice informal, the reports will not be made publicly available. Impact assessment It is the implementing regulation which will enable EU citizens to benefit from the progress made in Regulation (EC) No 883/2004. It is not until the legislative framework, consisting of the basic regulation and its implementing regulation, is adopted that the new rules will have an effect in terms of modernising, simplifying and improving citizens’ rights. The current Regulations (EEC) Nos 1408/71 and 574/72 will therefore be replaced by Regulation (EC) No 883/2004 and its implementing regulation. These instruments should not have any significant negative impact on the current situation in terms of workload or cost for the social security institutions or the administrations, workers or employers. On the contrary, as these new rules are intended to improve the coordination of social security systems and simplify procedures for all users of the Regulation, their adoption constitutes an improvement over the currently applicable rules. It is difficult at this stage to measure the increase in productivity which these new rules will bring about for the social security institutions, for employers, in particular SMEs, and for insured persons, employees and self-employed workers. The measures proposed are designed to improve the service for EU citizens. In particular, by making provision for measures to reduce the time currently needed to calculate and pay the pensions of persons who have worked in several Member States, this proposal is a step towards improving conditions for free movement in the Union. Moreover, these proposals are in line with e-administration, as the electronic exchange of information between the social security institutions is an essential aspect of speeding up procedures. The importance of using electronic tools for exchanging data between institutions is also recognised by all Member States as part of the action plan recently adopted by CASSTM. LEGAL ELEMENTS OF THE PROPOSAL Summary of the proposed action The aim of the proposal for a regulation to implement Regulation (EC) No 883/2004 on the coordination of national social security systems is to complete the process of modernising and simplifying the current legislation, Regulation (EEC) No 1408/71 and its implementing regulation, Regulation (EEC) No 574/72. This instrument is crucial to freedom of movement of persons in the Union. The objective of the proposal is to define for all parties involved (insured persons, the social security institutions and the competent authorities of the Member States) the procedures for implementing in practice the rules set out in Regulation (EC) No 883/2004. The proposal completes the modernisation work done by Regulation (EC) No 883/2004 and seeks to improve current procedures by simplifying them and clarifying the existing provisions in many areas. In this respect, through the procedures to be carried out, the proposal is intended to clarify the rights and obligations of the various stakeholders. This proposal is also intended to draw all the appropriate conclusions from the closer cooperation between the various stakeholders referred to in Regulation (EC) No 883/2004. The fact that Regulation (EC) No 883/2004 now concerns all European citizens, since it also covers the non-working population, means modernising the methods and procedures for cooperation between Member States’ social security institutions. Specifically, it is a question of facilitating the procedures for insured persons and reducing the time needed for institutions in the various branches of social security (sickness, accidents at work, occupational diseases, invalidity, old age, unemployment, family benefits) to respond and to process cross-border cases. This objective requires particular emphasis to be placed on the use of modern methods for the exchange of information. Electronic exchange of data between institutions is essential in facilitating the transfer of the information needed for coordinating and in particular ascertaining and calculating the rights of insured persons. Legal basis Articles 42 and 308 EC. Subsidiarity principle The principle of subsidiarity applies in so far as the proposal does not concern an area in which the Community has exclusive competence. The objectives of the proposal cannot be sufficiently achieved by the Member States for the reasons below: The proposed action, namely the adoption of the implementing procedure to ensure social security coordination measures, cannot be sufficiently achieved by the Member States, as also explicitly stated in Regulation (EC) No 883/2004 (recital 45). Indeed, Article 42 EC provides that in the field of social security the Council shall adopt such measures as are necessary to provide freedom of movement for workers. These provisions took the form of a coordinating Regulation whose scope has been gradually extended to include self-employed workers, students, pensioners, civil servants and now all insured persons. By nature this Regulation is intended only to define the necessary measures for the persons covered to travel, stay or reside in another Member State without losing their social security entitlements. To ensure that rights are safeguarded, the Regulation provides for different procedures to meet specific needs in the various branches of social security. However, it contains general principles to allow the coordination to function. These principles include single applicable legislation, assimilation of the facts, and equal treatment. Member States are required to comply with these but have exclusive competence in defining, organising and financing their national social security systems. With regard to cross-border cases, no Member State can act independently. The existing bilateral agreements have been replaced by the coordinating Regulation, which has thus simplified procedures and facilitated equal treatment of insured persons while complying with each Member State’s applicable social security legislation. The objectives of the proposal can be better achieved by Community action for the following reasons. The coordination of national social security systems is meaningful only at Community level: its basis lies in the free movement of persons in the EU and it is justified by this free movement. These rules concern all European citizens moving within the Union for any reason whatsoever. Member States continue to have exclusive competence in determining, organising and financing their national security systems. The proposal therefore complies with the principle of subsidiarity. Proportionality principle The proposal complies with the proportionality principle for the reasons below. The Member States, the competent authorities and the social security institutions retain exclusive competence for the organisation and financing of the national social security systems. Improving procedures and clarifying the rights and obligations of the various stakeholders should lead to savings in terms of administrative costs (settlement of claims between social security institutions) and an effective response to the needs of EU citizens (reduction in the time needed for reimbursement or payment of benefits). Increasing cooperation between institutions is an important factor in preventing fraud and abuse. Choice of instruments Proposed instrument(s): regulation. Other means would not be appropriate for the reasons below: Modernisation of the existing legislative instrument, namely Regulation (EEC) No 574/72, the implementing regulation for Regulation (EEC) No 1408/71, which will be replaced by Regulation (EC) No 883/2004. Regulation (EEC) No 1408/71 is a coordinating regulation and not a harmonising regulation, Member States having exclusive competence for the organisation and financing of their social security systems. The choice of a coordinating regulation to safeguard the social security rights of insured persons who exercise their right to free movement as guaranteed by the Treaty is proportionate to the objective pursued, as defined by the legislator in Article 42 of the Treaty. BUDGETARY IMPLICATIONS The proposal has no implications for the Community budget. ADDITIONAL INFORMATION Simulation, pilot phase and transitional period The proposal has been, or will be, subject to a transitional period. Simplification The proposal simplifies the legislative framework, the administrative procedures applicable to the (national and European) public authorities and the administrative procedures applicable to bodies and private individuals. Streamlining of the proposal, removal of annexes. Electronic exchange of information and work on electronic documents in order to facilitate such exchanges. Increase in cooperation between social security institutions in order to avoid placing the procedural burden primarily on insured persons. Clarification of the roles of the various parties involved. European Economic Area This draft instrument has to do with an area covered by the EEA Agreement and must therefore be extended to the European Economic Area. Detailed explanation of the proposal by chapter or by article The proposal for an implementing regulation is in line with the structure of Regulation (EC) No 883/2004: Title I “General provisions”; Title II “Determination of the legislation applicable”; Title III containing special provisions concerning the various categories of benefits: sickness, maternity and equivalent paternity benefits; benefits in respect of accidents at work and occupational diseases; death grants; invalidity benefits; old-age and survivors’ pensions; unemployment benefits; family benefits; Title IV “Financial provisions”; Title V “Miscellaneous transitional and final provisions”. This implementing regulation will allow Regulation (EC) No 883/2004 to enter into force. However, given the need to provide sufficient information for all parties concerned by this Regulation and not to cause difficulties in terms of the institutions’ balance of accounts, a minimum period of six months is provided for the entry into force of the new provisions on Community coordination of social security systems.

- 2006/0006(COD)

Proposal for a

REGULATION OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (Text with relevance for the EEA and for Switzerland)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Community, and in particular Articles 42 and 308 thereof,

Having regard to Regulation (EC) No 883/2004 i of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems i, and in particular Article 89 thereof,

Having regard to the proposal from the Commission i,

Having regard to the opinion of the European Economic and Social Committee i,

Acting in accordance with the procedure laid down in Article 251 of the Treaty i,

Whereas:

Regulation (EC) No 883/2004 modernises the rules on the coordination of Member States’ social security systems, specifying the measures and procedures for implementing it and simplifying them for all players involved. Implementing rules should be laid down.

Closer and more effective cooperation between social security institutions is a key factor in allowing the persons covered by Regulation (EC) No 883/2004 to access their rights as quickly as possible and under optimum conditions.

Electronic communication is a suitable means of rapid and reliable data exchange between Member States’ institutions. Processing these data electronically should help to speed up the procedures for everyone involved. The persons concerned must also benefit from all of the guarantees provided for in the Community provisions on the protection of natural persons with regard to the processing and free movement of personal data.

Availability of the details (including electronic details) of those national bodies likely to be involved in implementing Regulation (EC) No 883/2004, in a form which allows them to be updated in real time, should facilitate exchanges between Member States’ institutions. This approach, which focuses on the relevance of purely factual information and its immediate accessibility to citizens, is a valuable simplification which is to be introduced by this Regulation.

Strengthening certain procedures should ensure greater legal certainty and transparency for the users of Regulation (EC) No 883/2004. For example, setting common deadlines for fulfilling certain obligations or completing certain administrative tasks should help to clarify and structure relations between insured persons and institutions.

The Member States, their competent authorities and the social security institutions must have the option of agreeing among themselves on simplified procedures and administrative arrangements which they consider to be more effective and better suited to the circumstances of their respective social security systems. However, such arrangements must not affect the rights of those covered by Regulation (EC) No 883/2004.

The inherent complexity of the field of social security requires all institutions of the Member States to make a special effort to support insured persons in order to avoid penalising those who have not submitted their claim or certain information to the institution responsible for processing this application in accordance with the rules and procedures set out in Regulation (EC) No 883/2004 and in this Regulation.

To determine the competent institution, namely the one whose legislation applies or which is liable for the payment of certain benefits, the circumstances of the insured person and those of the family members must be examined by the institutions of several Member States. To ensure that the person concerned is protected for the duration of the necessary communication between institutions, provision should be made for provisional membership of a social security system.

Many measures and procedures provided for in this Regulation are intended to ensure greater transparency of the criteria which the institutions of the Member States must apply under Regulation (EC) No 883/2004. They are the result of the case-law of the Court of Justice of the European Communities, the decisions of the Administrative Commission and the experience of more than thirty years of application of the coordination of social security systems in the context of the fundamental freedoms enshrined in the Treaty.

Extending the scope of Regulation (EC) No 883/2004 to all insured persons, including the non-working population, requires certain specific rules and procedures for these persons, notably to define the legislation applicable for taking account of periods which persons who have never been employed or self-employed in the various Member States in which they have been resident have devoted to bringing up children.

Certain procedures must also reflect the need for a balanced sharing of costs between Member States. In particular in the area of sickness, these procedures must take account of the position of Member States which bear the costs of allowing insured persons access to their healthcare system and the position of Member States whose institutions bear the cost of benefits in kind received by their insured persons in a Member State other than that in which they are resident.

In the specific context of Regulation (EC) No 883/2004, it is necessary to clarify the conditions for meeting the costs of sickness benefits in kind as part of scheduled treatments, namely treatments for which an insured person goes to a Member State other than that in which he/she is insured or resident. The obligations of the insured person with regard to the application for prior authorisation are specified, as are the institution’s obligations towards the patient with regard to the conditions of authorisation. The consequences for the chargeability of the costs of care received in another Member State on the basis of an authorisation should also be clarified.

More binding procedures to reduce the time needed for payment of these claims between Member States’ institutions are essential in order to maintain confidence in the exchanges and meet the need for sound management of Member States’ social security systems. Procedures for the processing of claims relating to sickness and unemployment benefits must therefore be strengthened.

Because the social security schemes covered by Regulation (EC) No 883/2004 are based on solidarity between all insured persons, provision should be made for mechanisms to ensure more effective recovery of claims relating to benefits not due or contributions not paid. Procedures for mutual assistance between institutions must be clarified in line with the provisions laid down in Council Directive 76/308/EEC i of 15 March 1976 on mutual assistance for the recovery of claims relating to certain levies, duties, taxes and other measures so as to better protect the financial interests of the Member States by organising cooperation, especially between tax authorities.

Informing insured persons of their rights and obligations is a crucial component of a relationship of trust with the competent authorities and the Member States’ institutions.

Given that the objective of the action envisaged, namely the adoption of coordination measures to guarantee the effective exercise of free movement of persons, cannot be sufficiently achieved by the Member States and can therefore, by reason of the scale and effects of the proposed action, be better achieved at Community level, the Community may take action in accordance with the subsidiarity principle enshrined in Article 5 of the Treaty. In accordance with the proportionality principle set out in the above Article, this Regulation does not go beyond what is necessary to achieve the objective.

This Regulation is to replace Council Regulation (EEC) No 574/72 of 21 March 1972 fixing the procedure for implementing Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community i.

HAVE ADOPTED THIS REGULATION:

Title I – General provisions

Contents

1.

Chapter I - Definitions


Article 1Definitions

1. For the purposes of this Regulation, the definitions set out in Regulation (EC) No 883/2004 shall apply.

2. In addition to the definitions referred to in paragraph 1,

a) “access point” shall mean the body designated by the competent authority of a Member State to send and receive electronically the data necessary for the application of Regulation (EC) No 883/2004 and the present Regulation via the joint network through which data are exchanged between the competent institutions of this Member State and the competent institutions and/or the point of access of other Member States;

b) “liaison body” shall mean the body designated by the competent authority of a Member State, for one or more branches of social security referred to in Article 3 of Regulation (EC) No 883/2004, to respond to requests for information and assistance from Member States’ institutions and which the latter may approach in accordance with Title IV of this Regulation;

c) “document” shall mean a set of data, irrespective of the medium used, identified by the Administrative Commission, which may be exchanged electronically and which must be communicated to allow Regulation (EC) No 883/2004 and the present Regulation to function;

d) “standardised electronic message” shall mean any document structured according to the format specified by the Administration Commission for the exchange of information between Member States’ institutions;

e) “transmission by electronic means” shall mean transmission using electronic equipment for processing (including digital compression) of data and employing wires, radio transmission, optical technologies or any other electromagnetic means;

f) “Technical Commission” shall mean the body referred to in Article 73 of Regulation (EC) No 883/2004;

g) “Audit Board” shall mean the body referred to in Article 74 of Regulation (EC) No 883/2004.

Chapter II – Provisions concerning cooperation and exchanges of data

2.

Article 2 Scope and rules for exchanges between institutions


1. The Member States’ institutions shall share with each other all data necessary for establishing and determining the rights and obligations of persons covered by Regulation (EC) No 883/2004 and, in particular, for establishing the correct amount of the benefits and of the social security contributions.

2. Where an insured person has mistakenly submitted information, documents or claims to an institution other than that designated in accordance with this Regulation, the information, documents or claims must be resubmitted immediately by the former institution to the institution designated in accordance with this Regulation, indicating the date on which they were initially submitted. This date shall be binding on the latter institution.

3. Data shall be transferred between Member States’ institutions either directly by the institutions themselves or indirectly via the access point or the liaison body.

4. Where data are transferred indirectly via the access point or the liaison body, this access point or liaison body shall be regarded as fulfilling the role and function of the competent institution in this Member State with regard to time-limits for responding to claims submitted.

3.

Article 3Scope and rules for exchanges between beneficiaries and institutions


1. Anyone covered by Regulation (EC) No 883/2004 shall be required to forward to the competent institution any information or supporting documentation necessary to establish his/her situation or that of his/her family, to establish or maintain his/her rights and obligations and to determine the applicable legislation and his/her obligations under it.

In particular, where legislation provides that the amount of benefits is established taking into account the existence of family members other than children, the insured person shall be required to submit a certified statement relating to members of his/her family who are residing on the territory of a Member State other than that in which the institution responsible for the award of benefits is situated, in order to have these family members taken into account.

2. The Member State which collects data under its legislation or in the situation referred to in Article 52 shall guarantee that the persons concerned have the right of access to these data and the right to rectify them, in accordance with Community provisions on the protection of individuals with regard to the processing of personal data and the free movement of these data.

3. The institutions of the competent Member State shall forward the necessary information and issue the necessary documents to insured persons.

4. The competent institution of a Member State which directly sends a document containing a decision on the rights of a person residing or staying in the territory of another Member State shall request an acknowledgement of receipt, irrespective of the medium or the method of dispatch used. The acknowledgement of receipt may be given using any medium and in any form.

5. In the absence of proof that the decision referred to in paragraph 4 has been sent, the time-limits relating to the forfeiture or limitation of rights acquired under Regulation (EC) No 883/2004 shall not be invoked against the beneficiaries.

6. Where the date on which the decision referred to in paragraph 4 was sent is duly established, the decision of the competent institution shall be held to be invoked against the person concerned within a month of this date. However, if the legislation of the Member State which made the decision provides for a longer time-limit, this time-limit shall apply.

7. In any event, the person concerned shall be entitled to the remedies and procedures provided for in the legislation applied by the institution responsible for the decision.

8. The Administrative Commission shall stipulate the practical arrangements for implementing this provision in the event that the decision is sent to the person concerned by electronic means.

4.

Article 4 Format and method of exchanging data


1. The Administrative Commission shall lay down the content of the documents and the structure of the standardised electronic messages.

2. The transmission of data between the institutions, the access points or the liaison bodies shall be carried out by electronic means under a common secure framework that can guarantee the confidentiality and protection of exchanges of data.

3. In their communications with beneficiaries, the competent institutions shall favour the use of electronic means.

5.

Article 5Legal value of documents and supporting documents issued in another Member State


1. Documents issued by the institution of a Member State and showing the position of a person for the purposes of the application of Regulation (EC) No. 883/2004 and of this Regulation, and supporting documents issued by the authorities of another Member State, including the taxation authorities, shall be accepted by the institutions of the other Member States so long as they have not been withdrawn or declared to be invalid by the competent authority or institution of the Member State in which they were issued.

2. Where there is doubt about the validity of a document or the accuracy of the facts on which the particulars contained therein are based, the institution of the Member State that receives the document shall contact the issuing institution to ask it for the necessary clarification and, where appropriate, the withdrawal of the said document.

3. Where no agreement is reached between the institutions concerned in the month following the date on which the institution that received the document submitted its request, the matter may be brought before the Administrative Commission in accordance with Article 76 i of Regulation (EC) No. 883/2004 in order to reconcile the points of view within six months of the date on which the matter was brought before it.

6.

Article 6 Provisional application of legislation and provisional payment of benefits


1. Where uncertainty about the identification of the applicable legislation requires contacts between the competent institutions or authorities of two or more Member States, the person concerned shall be made provisionally subject to the following legislation:

a) that of the Member State of residence when the person concerned performs part of his/her activity/activities there or when the person is not employed or self-employed;

b) that of the Member State in which an application for membership was first submitted, in the other cases.

2. Where there is a difference of views between the competent institutions or authorities of two or more Member States about which institution should provide the benefits, the person concerned who could claim benefits if there was no dispute shall be entitled, on a provisional basis, to the benefits foreseen by the legislation applied by the institution of his/her place of residence or, if that person does not reside on the territory of one of the Member States concerned, to the benefits foreseen by the legislation applied by the institution to which the request was first submitted.

3. Where it is established that the applicable legislation is not that of the Member State of provisional membership or where the institution that paid the benefits on a provisional basis was not the competent institution, the institution identified as being competent shall be deemed to be so from the date of provisional membership or of the first provisional payment of the benefits concerned.

4. If necessary, the competent institution shall settle the financial situation of the person concerned as regards contributions and benefits on the basis of the arrangements laid down in Articles 71 and 72 and, where appropriate, Articles 73 to 82.

7.

Article 7Obligation of provisional award


1. An institution that does not have all the information needed to calculate definitively the amount of a benefit or a contribution shall award this benefit or this contribution on a provisional basis.

2. The benefit or the contribution concerned shall be recalculated as soon as the documentary evidence is provided to the institution concerned.

Chapter III – Other general provisions for the application of Regulation (EC) No. 883/2004

8.

Article 8 Administrative arrangements between two or more Member States


1. The provisions of this Regulation shall replace those of the arrangements for the application of the conventions referred to in Article 8 of Regulation (EC) No. 883/2004, apart from the provisions of the arrangements concerning the conventions referred to in Annex II of Regulation (EC) No. 883/2004, provided that the provisions of the said arrangements are included in Annex I of this Regulation.

2. The Member States may conclude between themselves, if necessary, arrangements pertaining to the application of conventions referred to in Article 8 i of Regulation (EC) No. 883/2004 provided that these arrangements do not adversely affect the rights of beneficiaries.

9.

Article 9 Other procedures between institutions


1. Two or more Member States, or their competent authorities or institutions, may agree other procedures than those foreseen by the provisions of Titles II to IV, provided that these procedures do not adversely affect the rights of beneficiaries.

2. Any agreements concluded to this end shall be notified to the Administrative Commission and listed in Annex 1 to this Regulation.

10.

Article 10 Prevention of overlapping of benefits


When benefits due under the legislation of two or more Member States are mutually reduced, suspended or withdrawn, any amounts that would not be paid in the event of strict application of the rules concerning reduction, suspension or withdrawal laid down by the legislation of the Member States concerned shall be divided by the number of benefits subjected to reduction, suspension or withdrawal.

11.

Article 11 Elements for determining residence


1. In order to resolve difficulties between the institutions of several Member States in determining the residence of a person covered by Regulation (EC) No 883/2004, these institutions shall establish by common accord the centre of interest of the person concerned, taking account of the following facts:

a) the duration and continuity of residence;

b) family status, especially the place in which the children attend school, and family ties;

c) in the case of workers, the fact of having a stable job;

d) the person’s intention, as is apparent from all the circumstances, especially the reasons that led the person to move;

e) the Member State in which the person is subject to taxation on all his/her income, regardless of its source.

2. Where the application of the various criteria set out in paragraph 1 does not lead to agreement between the institutions, the intention expressed by the person concerned shall be considered to be decisive for establishing his/her place of residence.

12.

Article 12Aggregation of periods


1. For the purposes of applying Article 6 of Regulation (EC) No 883/2004, the competent institution shall contact the institution of the Member State to whose legislation the insured person was previously subject in order to find out the periods of insurance, employment, self-employment or residence completed under this legislation.

2. The periods of insurance or residence completed under the legislation of a Member State shall be added to the periods of insurance or residence completed under the legislation of any other Member State, insofar as it is necessary to have recourse to them with a view to the acquisition, retention or recovery of the right to benefits, provided that these periods do not overlap.

3. Where a period of insurance or residence that is completed in accordance with insurance that is compulsory under the legislation of a Member State coincides with a period of insurance completed on the basis of voluntary insurance or continued optional insurance under the legislation of another Member State, only the period completed on the basis of compulsory insurance shall be taken into account.

4. Where a period of insurance or residence other than an equivalent period completed under the legislation of a Member State coincides with an equivalent period on the basis of the legislation of another Member State, only the period other than an equivalent period shall be taken into account.

5. Any period regarded as equivalent under the legislation of two or more Member States shall be taken into account only by the institution of the Member State to whose legislation the insured person was last compulsorily subjected before the said period. In the event that the insured person was not compulsorily subjected to the legislation of a Member State before the said period, the latter shall be taken into account by the institution of the Member State to whose legislation the insured person was compulsorily subjected for the first time after the said period.

6. In the event that the time in which certain periods of insurance or residence were completed under the legislation of a Member State cannot be determined precisely, it shall be presumed that these periods do not overlap with periods of insurance or residence completed under the legislation of another Member State, and account shall be taken thereof insofar as they can reasonably be taken into consideration.

13.

Article 13Rules for conversion of periods of insurance


Where periods of insurance completed under the legislation of a Member State are expressed in different units to those used by the legislation of another Member State, the conversion needed for the purpose of aggregation shall be carried out under the following rules:

a) one day shall be equivalent to eight hours, and vice versa;

b) five days shall be equivalent to one week, and vice versa;

c) 22 days shall be equivalent to one month, and vice versa;

d) three months or thirteen weeks or sixty-six days shall be equivalent to one quarter, and vice versa;

e) for the conversion of weeks into months and vice versa, weeks and months shall be converted into days;

f) the application of points a) to e) may not lead to the admission, for all the periods of insurance completed in a calendar year, of a total exceeding 264 days or 52 weeks or 12 months or four quarters.

Where the periods of insurance completed under the legislation of a Member State are expressed in months, the days that correspond to a fraction of a month, in accordance with the conversion rules set out in the first subparagraph, shall be considered to be a full month.

14.

Title II - Determination of the legislation applicable


Article 14Details relating to Articles 12 and 13 of Regulation (EC) No 883/2004

1. For the purposes of the application of Article 12 i of Regulation (EC) No 883/2004, the criterion for determining whether the activity that a self-employed person goes to pursue in another Member State is “similar” to the self-employed activity normally pursued shall be that of the actual nature of the activity, rather than of the designation of employed or self-employed activity that may be given to this activity by the other Member State.

2. For the purposes of the application of Article 13 i and i of Regulation (EC) No 883/2004, a “substantial part of employed or self-employed activity” shall be pursued in a Member State if a quantitatively substantial part of all the activities of the employed or self-employed worker is pursued there, without this necessarily being the major part of these activities. The proportion of activity pursued in a Member State shall in no event be substantial if it is less than 25% of all the activities pursued by the worker in terms of turnover, working time or remuneration or income from work.

3. For the purposes of the application of Article 13(2)(b) of Regulation (EC) No 883/2004, the “centre of interest” of the activities of a self-employed person shall be determined by taking account of all the aspects of that person’s occupational activities, notably the place where the person’s fixed and permanent place of business is located, the habitual nature or the duration of the activities pursued, the Member State in which the person concerned is subject to taxation on all his/her income, irrespective of the source, and the intention of the person concerned as revealed by all the circumstances.

4. If a person pursues his activity as an employed person in two or more Member States on behalf of an employer established outside the territory of the Union, and if this person resides in a Member State without pursuing substantial activity there, he/she shall be subject to the legislation of the Member State of residence.

15.

Article 15Procedure for the application of Article 11( 3)( b) of Regulation (EC) No 883/2004


If a civil servant pursues his/her activity in a Member State other than the competent State, the competent institution shall inform the designated institution of this other Member State thereof in advance.

16.

Article 16Procedure for the application of Article 12 of Regulation (EC)No 883/2004


1. An employer who, pursuant to Article 12 i of Regulation (EC) No 883/2004, posts a worker to perform work on his/her behalf in another Member State shall inform the competent institution of the Member State whose legislation remains applicable thereof, where feasible in advance. This institution shall inform the designated institution of the Member State in which the worker is posted.

2. A self-employed person who, pursuant to Article 12 i of Regulation (EC) No 883/2004, goes to pursue an activity in another Member State shall inform the competent institution of the Member State whose legislation remains applicable thereof, where feasible in advance. This institution shall inform the designated institution of the Member State to which the self-employed person goes to pursue his/her activity.

17.

Article 17Procedure for the application of Article 13 of Regulation (EC) No 883/2004


1. A person who pursues activities in two or more Member States shall inform the designated institution of the Member State in which he/she resides thereof. This institution shall forward this information to the designated institution of each Member State in which an activity is pursued.

2. In the situations referred to in Article 13 i and i of Regulation (EC) No 883/2004, the designated institutions of the Member States concerned shall determine, by common accord, the legislation applicable to the person concerned, having regard to the provisions of Article 13 i and i of Regulation (EC) No 883/2004 and of Article 14 i and i of this Regulation.

3. The determination of the applicable legislation shall take place within one month of the forwarding of the information to the designated institution of the place of residence of the insured person, in accordance with paragraph 1.

As long as the applicable legislation has not been determined, the person concerned shall be subject on a provisional basis to the legislation determined in accordance with Article 6 i.

The competent institution of the competent Member State whose legislation is declared applicable at the end of the procedure of consultation between the institutions concerned under the terms of paragraph 2 shall immediately inform the person concerned thereof.

18.

Article 18Procedure for the application of Article 15 of Regulation (EC) No 883/2004


Auxiliary staff shall exercise the right of option foreseen in Article 15 of Regulation (EC) No 883/2004 at the time of conclusion of the contract of employment. The authority authorised to conclude this contract shall inform the designated institution of the Member State for whose legislation the member of auxiliary staff has opted.

19.

Article 19 Provision of information to insured persons


1. The competent institution of the Member State whose legislation is applicable shall inform the person concerned and, where appropriate, his/her employer(s) of the obligations stemming from this legislation. It shall provide them with the necessary assistance to complete the formalities imposed by this legislation.

2. At the request of the person concerned or of the employer, the competent institution of the Member State whose legislation is applicable by virtue of a provision of Title II of Regulation (EC) No 883/2004 shall provide an attestation that this legislation is applicable and shall indicate, where appropriate, until what date and under what conditions.

20.

Article 20Cooperation between institutions


1. The institutions referred to in Article 17 i shall communicate to the competent institution of the Member State whose legislation is applicable to a person all the information required to establish the contributions which he/she and his/her employer(s) are liable to pay under this legislation.

2. The competent institution of the Member State whose legislation becomes applicable to a person shall inform the institution of the Member State to whose legislation that person was last subject, indicating the date on which the application of this legislation takes effect.

21.

Article 21Obligations of the employer


1. The employer of a worker shall be obliged to fulfil all the obligations laid down by the legislation applicable to that worker, notably the obligation to pay the contributions provided for by this legislation.

2. An employer that does not have an establishment in the Member State whose legislation is applicable and the employee may agree that the latter may fulfil the employer’s obligations on its behalf as regards the payment of contributions. The employer shall be obliged to communicate such an arrangement to the competent institution of this Member State.

Title III – Special provisions concerning the various categories of benefits

Chapter I – Sickness, maternity and equivalent paternity benefits

22.

Article 22General implementing provisions


1. The competent authorities shall ensure that insured persons are informed of the procedures and conditions for the cost of benefits in kind to be borne where these benefits are received on the territory of a Member State other than that of the competent institution or of the place of residence.

2. Articles 25 and 26 shall not affect the application of the national provisions of a Member State that allow for a greater part of the cost of benefits in kind in the situations referred to in paragraph 1 to be borne than under the terms of Regulation (EC) No. 883/2004.

3. Two or more Member States, or their competent authorities, may agree between themselves on other procedures and arrangements for the application of Articles 25, 26 and 27. However, the agreements concluded to this end may not have unfavourable effects on the conditions and amounts for the chargeability of the benefits in kind of the persons concerned that would stem from the application of this Regulation. These agreements shall be notified to the Administrative Commission.

4. If national legislation makes entitlement to the benefits referred to in this Chapter dependent on being a pensioner, account shall be taken of only the pension payable by an institution of that Member State.

23.

Article 23Regime applicable in the event of the existence of several regimes in the Member State of residence or stay


If the legislation of the place of residence or stay comprises several schemes of sickness, maternity and paternity insurance, the provisions applicable under Articles 17, 19 i, 20, 22, 24, 26 and 27 of Regulation (EC) No. 883/2004 shall be those of the legislation on the general scheme for employed persons.

24.

Article 24Residence in a Member State other than the competent Member State


1. For the purposes of the application of Article 17 of Regulation (EC) No. 883/2004, an insured person or members of his/her family shall be obliged to register with the institution of the place of residence, sending a document showing their right to the benefits in kind payable by the competent Member State.This document shall be issued by the competent institution, where appropriate in the light of the information provided by the employer. If the insured person or the members of his/her family do not send the said document, the institution of the place of residence shall request the necessary information from the competent institution.

2. The institution of the place of residence shall inform the competent institution of any registration it has carried out in accordance with the provisions of paragraph 1.

3. This Article shall apply mutatis mutandis to the persons referred to in Articles 22, 24, 25 and 26 of Regulation (EC) No. 883/2004.

25.

Article 25Stay in a Member State other than the competent Member State


A) Procedure and scope of right

1. For the purposes of the application of Article 19 of Regulation (EC) No. 883/2004, before leaving the territory of the Member State in which he/she resides, the insured person shall ask his/her competent institution to send him/her the document showing his/her right to the benefits in kind.Pensioners or the members of their family referred to in Article 27 i of Regulation (EC) No. 883/2004 shall send their request to the institution of the place of residence, which shall send it, where appropriate, to the institution that is responsible for expenditure relating to the benefits in kind provided to the pensioner in the Member State of residence.

2. In accordance with Article 19 i of Regulation (EC) No. 883/2004, if benefits in kind become necessary on medical grounds for the insured person during his/her stay, he/she shall present the document referred to in Paragraph 1 to the care provider in the Member State of residence, which shall apply to him/her the provisions of the legislation that would be applicable to him/her if he/she came under the scheme referred to in Article 23 of this Regulation in the Member State of stay.If the insured person does not have the said document, the institution of the place of stay shall contact the competent institution to obtain the necessary information.

3. The benefits in kind referred to in Article 19 i of Regulation (EC) No. 883/2004 shall refer to the benefits in kind that must be provided in the Member State of stay, in accordance with the latter's legislation, in order to ensure that an insured person is not obliged to return to his/her place of residence, before the planned end of his/her stay, in order to receive the treatment required by his/her state of health.

4. Paragraphs 1-3 shall apply mutatis mutandis to the members of the family of the insured person.

B) Procedure and arrangements for meeting the costs and providing reimbursement of benefits in kind.

5. If the insured person has actually borne all or part of the costs of the benefits in kind provided within the framework of Article 19 of Regulation (EC) No. 883/2004, he/she shall send his/her application for reimbursement to the institution of the place of stay. This institution shall reimburse directly to that person the amount of the expenses corresponding to these benefits within the limits and under the conditions of the rates in its legislation.

6. If the reimbursement of these expenses has not been requested directly from the institution of the place of stay, the charges incurred shall be reimbursed to the person concerned by the competent institution at the reimbursement rates applied by the institution of the place of stay.The institution of the place of stay shall be obliged to provide the competent institution with all necessary information about these rates upon request.If the legislation of the Member State of stay does not provide for reimbursement rates, the competent institution may undertake the reimbursement in accordance with the rates that it applies, without the need for the agreement of the insured person.

7. By way of derogation from Paragraph 6 i, the competent institution may undertake the reimbursement of the charges incurred at the reimbursement rates that it applies, provided that the insured person has agreed to this provision being applied to him/her and that the legislation allows for the reimbursement of such charges.

8. In the case of major expenditure, the competent institution may pay the insured person an appropriate advance as soon as this person submits his/her request for reimbursement to it.

26.

Article 26Scheduled treatment


A) Authorisation procedure

1. For pensioners and the members of their family other than those referred to in Article 27 i of Regulation (EC) No. 883/2004, the institution of the Member State responsible for expenses related to the benefits in kind provided in the Member State of residence shall be considered to be the competent institution for granting the authorisation referred to in Article 20 i of Regulation (EC) No. 883/2004.

2. For the purposes of the application of Article 20 i and Article 27 i of Regulation (EC) No. 883/2004, if the person does not reside on the territory of the competent Member State, the authorisation referred to in Article 20 i of Regulation (EC) No.883/2004 shall be requested from the competent institution by the institution of the place of residence. The institution of the place of residence shall state the reasons why it is requesting this authorisation for the person concerned, in particular those mentioned in Article 20 i of Regulation (EC) No. 883/2004.In the absence of a reply within fifteen “calendar days” of the date on which the request was sent, the authorisation shall be considered to have been granted by the competent institution.The institution of the place of residence shall grant the authorisation to the person concerned on behalf of the competent institution.At any time during the procedure of the granting of the authorisation, the competent institution shall retain the right to have the person concerned examined by a doctor of its choice in the Member State of stay or residence.

3. The procedure referred to in Paragraph 2 shall not apply if the benefits in kind concerned are vitally necessary treatment. The prior authorisation referred to in Article 20 i of Regulation (EC) No. 883/2004 shall be granted by the institution of the place of residence on behalf of the competent institution, which shall be immediately informed by the institution of the State of the place of residence.The competent institution shall be obliged to accept the findings and the treatment options concerning the need for vitally necessary treatment that is decided by the doctors approved by the institution of the place of residence that issues the authorisation.

4. The person concerned shall send the authorisation to the institution of the place of stay. The latter shall be obliged to inform the institution of the insured person’s place of residence of the development of the state of health of the insured person when it appears medically necessary to supplement the treatment. The institution of the place of residence shall immediately forward this information to the competent institution.

B) Meeting the cost of benefits in kind as part of scheduled treatment.

5. When an authorisation in granted, the competent institution shall meet the costs of the expenses at the highest rate. Consequently, if the rates of the institution of the place of stay for the benefits in kind concerned are lower than those of the competent institution, the insured person may ask the competent institution to pay him/her the additional amount within the limit of its rates.

C) Meeting the costs of travel and stay as part of scheduled treatment.

6. Where the competent institution grants an authorisation, the costs of travel and stay that are inseparable from the treatment of the person shall be met in accordance with the legislation applied by the competent institution, for the person concerned and, if necessary, for a person who must accompany him/her.

27.

D) Family members


7. The provisions of paragraphs 1-6 shall apply mutatis mutandis to the members of the family of the insured persons.

28.

Article 27Cash benefits relating to incapacity for work in the event of stay or residence in a Member State other than the competent Member State


A) Procedure to be followed by the insured person

1. In order to be entitled to the cash benefits relating to incapacity for work pursuant to Article 21 i of Regulation (EC) No. 883/2004, the insured person shall ask the doctor of the Member State of residence who established his/her state of health to fill in the document designed to certify his/her incapacity for work.

2. The insured person shall send the completed document within three working days of the determination of his/her medical condition:

a) to the institution of the place of residence if the person pursues his/her occupational activity there;

b) to the competent institution in the other cases.

3. The forwarding of the document referred to Paragraphs 1 and 2 shall not exempt the insured person from fulfilling the obligations provided for by the applicable legislation, in particular with regard to his/her employer.

4. When the insured person returns to work, he/she shall inform the competent institution thereof, which shall inform the institution of the place of residence, where appropriate.

29.

B) Procedure to be followed by the institution of the Member State of residence


5. At the request of the competent institution or in the cases referred to in Paragraph 2(a), the institution of the place of residence shall have the medical condition of the insured person checked, where necessary, as if that person was insured by it. The information in the report of the examining doctor that concerns, in particular, the probable duration of the incapacity for work, shall be forwarded by the institution of the place of residence to the competent institution within three working days of the date of the examination.

6. The institution of the place of residence shall subsequently conduct an administrative or medical check of the insured person, where necessary, as if he/she were insured by it. As soon as it establishes that the person concerned is fit to return to work, it shall inform him/her forthwith and the competent institution, stating the date on which the incapacity for work is to come to an end. Without prejudice to the provisions of Paragraph 10, the notification to the person concerned shall be deemed to be the decision taken on behalf of the competent institution.

7. At the request of the competent institution, the institution of the place of residence shall be obliged to have the insured person examined by a doctor chosen by the competent institution.

30.

C) Procedure to be followed by the competent institution


8. The competent institution shall pay the cash benefits directly to the person concerned and shall inform the institution of the place of residence thereof. However, if the cash benefits are paid by the institution of the place of residence on behalf of the competent institution, the latter shall inform the person concerned of his/her rights. It shall inform the institution of the place of residence of the amount of the cash benefits, the dates on which they should be paid and the maximum duration of the granting of such benefits as provided for by the legislation of the competent State.

9. For the purposes of the application of Article 21 i of Regulation (EC) No. 883/2004, the particulars of the certificate of incapacity for work of an insured person drawn up in another Member State on the basis of the medical findings of the attending practitioner shall have to be accepted by the competent institution unless there is any abusive conduct.

10. If the competent institution decides to refuse the cash benefits because the insured person has not followed the formalities foreseen by the legislation of the Member State of residence or if a doctor of its choice finds that the insured person is fit to return to work, it notifies him/her of its decision and simultaneously notifies the institution of the place of residence thereof.

D) Procedure in the event of a stay in a Member State other than the competent Member State.

11. The provisions of paragraphs 1-10 shall apply mutatis mutandis when the insured person stays in a Member State other than the competent Member State.

31.

Article 28Application of Article 28 of Regulation (EC) No. 883/2004


1. Article 28 i of Regulation (EC) No. 883/2004 shall also apply to the recipients of an invalidity pension. “Continuation of treatment” shall mean further treatment of the disease for its entire duration.

2. The term “treatment” shall refer to any medical service provided with a view to protecting, preserving or restoring the health of persons.

3. Article 28 i of Regulation (EC) No. 883/2004 shall apply mutatis mutandis to wholly unemployed frontier workers and to the members of their families if the competent Member State is not included in the list in Annex III to Regulation (EC) No. 883/2004.

32.

Article 29Contributions by pensioners


1. Where the institution referred to in Article 30 i of Regulation (EC) No 883/2004 takes into account, pursuant to Article 5 of that Regulation, pensions acquired under the legislation of one or more of the other Member States, it shall take into consideration only the amounts of pensions actually paid to the person concerned to determine the basis for calculating contributions.

2. Under no circumstances shall the amount of contributions deducted from the pensions in question be greater than the amount due from a person with the same income obtained in the Member State referred to in Article 30 of Regulation (EC) No 883/2004.

33.

Article 30Application of Article 34 of Regulation (EC) No 883/2004


1. For the purposes of applying Article 34 of Regulation (EC) No 883/2004, long-term care benefits shall not be considered to be treatments as defined in Article 28 i of this Regulation, but as home care or daily living assistance for the person in question, depending on their degree of autonomy.

2. The institution in the place of residence shall inform the person concerned of the non-aggregation rule and of the conditions for applying it to the long-term care benefits in question. However, the application of such rules shall ensure that the person not residing in the territory of the competent Member State is entitled to at least the same amount of benefit as that to which they would be entitled if they resided in that Member State.

3. The Administrative Commission shall lay down implementing measures for this Article where necessary.

34.

Article 31Special implementing measures


1. The provisions of Title III, Chapter 1, of Regulation (EC) No 883/2004 relating to benefits in kind shall not apply to persons entitled to benefits in kind solely on the basis of a special scheme for civil servants in one of the Member States referred to in Annex 2 to this Regulation.

2. Notwithstanding the provisions of paragraph 1, Article 23 of Regulation (EC) No 883/2004 shall apply to persons who are entitled to both a pension under a civil servants’ scheme in one of the Member States referred to in Annex 2 and a pension under the legislation of another Member State.

3. Practical implementing measures for paragraphs 1 and 2 shall be taken by the Administrative Commission.

Chapter II – Benefits in respect of accidents at work and occupational diseases

35.

Article 32 Right to benefits in kind and in cash in the event of residence or stay in a Member State other than the competent Member State


For the purposes of applying Article 36 i of Regulation (EC) No 883/2004, the procedures laid down in Articles 24 to 27 of this Regulation shall apply mutatis mutandis .

36.

Article 33Scheduled treatments


The competent institution may not refuse to grant the authorisation provided for in Article 20 i of Regulation (EC) No 883/2004 to an employed or self-employed person who has sustained an accident at work or has contracted an occupational disease and who is entitled to benefits chargeable to that institution, where the treatment appropriate to his/her condition cannot be given in the Member State in which the person resides within a time limit which is medically justifiable, taking into account his/her current state of health and the probable course of his/her illness.

37.

Article 34Cooperation between institutions in the event of an accident at work or occupational disease which occurs in a Member State other than the competent Member State


1. If the accident at work or occupational disease is diagnosed for the first time in a Member State other than the competent Member State, the declaration of the occupational accident or disease shall be carried out in accordance with the legislation in the competent State, without prejudice, where appropriate, to the legal provisions in force in the Member State in which the occupational accident occurred or in which the first medical diagnosis of the occupational disease was made, which remain applicable in such cases. This declaration shall be addressed to the competent institution and a copy shall be sent to the institution in the place of residence or stay.

2. The institution of the Member State in the territory of which the occupational accident occurred or in which the occupational disease was first diagnosed, shall notify the competent institution of medical certificates drawn up in the territory of that State and, at the request of that institution, shall provide any appropriate information.

3. Where, as a result of a commuting accident which occurs in the territory of a Member State other than the competent Member State, an inquiry is necessary in the territory of the first Member State, an investigator may be appointed for this purpose by the competent institution, which shall inform the authorities of that Member State. The authorities shall assist the investigator, in particular by appointing a person responsible for helping to consult the reports and any other documents relating to the accident.

4. Following treatment, a detailed report accompanied by medical certificates relating to the permanent consequences of the accident or illness, in particular the victim’s present state and the recovery or stabilisation of injuries, shall be sent to the competent institution. The relevant fees shall be paid by the institution in the place of residence or by the institution in the place of stay, where appropriate, at the rate applied by that institution to the charge of the competent institution.

5. At the request of the institution in the place of residence or the institution in the place of stay, where appropriate, the competent institution shall notify it of the decision setting the date for the recovery or stabilisation of injuries and, where appropriate, the decision concerning the granting of a pension.

38.

Article 35 Contestation of the occupational nature of the accident or disease


1. Where the competent institution contests application of the legislation relating to accidents at work or occupational diseases under Article 36 i of Regulation (EC) No 883/2004, it shall immediately inform the institution in the place of residence or stay which provided the benefits in kind, which will then be considered as sickness insurance benefits.

2. When a final decision has been taken on this subject, the competent institution shall immediately inform the institution in the place of residence or stay which provided the benefits in kind. The latter shall continue to pay benefits in kind as sickness insurance benefits if the employed or self-employed person is entitled to them and an occupational accident or disease is not involved. In the opposite case, benefits in kind paid to the beneficiary as sickness insurance shall be considered as occupational accident or disease benefits from the date on which the occupational accident or disease was first diagnosed.

39.

Article 36 Procedure in the event of exposure to the risk of an occupational disease in several Member States


1. In the case referred to in Article 38 of Regulation (EC) No 883/2004, the declaration of the occupational disease shall be sent either to the competent institution for occupational diseases of the last Member State under the legislation of which the victim pursued an activity likely to cause the said disease, or to the institution in the place of residence, which shall forward the declaration to the above-mentioned competent institution.

If the latter institution establishes that an activity likely to cause the occupational disease in question was last pursued under the legislation of another Member State, it shall send the declaration and the accompanying certificates to the equivalent institute in that Member State.

2. Where the institution of the last Member State under the legislation of which the victim pursued an activity likely to cause the occupational disease in question establishes that the victim or his/her survivors do not meet the requirements of that legislation, the said institution shall forward immediately to the institution of the previous Member State under the legislation of which the victim pursued an activity likely to cause the occupational disease in question the declaration and all accompanying certificates, including the findings and reports of medical examinations performed by the first institution, as well as a copy of the decision referred to in the second paragraph.

It shall also inform the insured person of its decision, indicating in particular the reasons for refusing benefits, the remedies and periods allowed for appeals, as well as the date on which the dossier was sent to the institution of the Member State under the legislation of which the insured person previously pursued an activity likely to cause the occupational disease in question.

3. It is advisable, where appropriate, to apply the same procedure and go back as far as the equivalent institution in the Member State under whose legislation the victim first pursued an activity likely to cause the occupational disease in question.

40.

Article 37 Exchange of information between institutions and advance payments in the event of an appeal against rejection


1. In the event of an appeal against a decision to refuse benefits taken by the institution of one of the Member States under the legislation of which the victim pursued an activity likely to cause the occupational disease in question, that institution shall inform the institution to which the declaration was sent, in accordance with the procedure provided for in Article 36 i, and shall subsequently inform it of the final decision.

2. Where a person is entitled to benefits under the legislation applied by the institution to which the declaration was sent, that institution shall make the advance payments, the amount of which shall be determined, where appropriate, after consulting the institution which made the decision against which the appeal was lodged. The latter institution shall reimburse the advance payments made if, as a result of the appeal, it is obliged to provide these benefits. That amount will then be deducted from the benefits due to the person concerned, in accordance with the procedure provided for in Article 71.

41.

Article 38 Aggravation of an occupational disease


In the cases covered by Article 39 of Regulation (EC) No 883/2004, the claimant must give the institution in the Member State from which he/she is claiming entitlement to benefits all the details concerning benefits previously granted for the occupational disease in question. That institution may contact any other previously competent institution in order to obtain the information it considers necessary.

Article 39Assessment of the degree of incapacity in the eve nt of occupational accidents or diseases which occurred previously or subsequently.

For the purposes of applying Article 40 i of Regulation (EC) No 883/2004, where a previous or subsequent incapacity for work was caused by an accident which occurred when the person concerned was subject to the legislation of a Member State which makes no distinction according to the origin of the incapacity to work, the competent institution in the case of the previous or subsequent incapacity for work or the body designated by the competent authority of the Member State in question shall be obliged, when requested to do so by the competent institution of another Member State, to provide information concerning the degree of the previous or subsequent incapacity for work, and, where possible, information making it possible to determine whether the incapacity is the result of an accident at work within the meaning of the legislation applied by the institution in the other Member State.

In this case, the competent institution shall take into account the degree of incapacity caused by these previous or subsequent cases when determining the right to benefits and the amount, in accordance with the applicable legislation.

42.

Article 40Submission and investigation of claims for pensions or supplementary allowances


1. In order to receive a pension or supplementary allowance under the legislation of a Member State, the employed or self-employed person or his/her survivors residing in the territory of another Member State shall submit a claim either to the competent institution or to the institution in the place of residence, which shall send it to the competent institution. The claim shall be accompanied by the necessary supporting documents and be drawn up in accordance with the legislation applied by the competent institution.

2. The competent institution shall notify the claimant of its decision directly or through the liaison body of the competent State; it shall send a copy of this decision to the liaison body of the Member State in which the claimant resides.

43.

Article 41 Special implementing measures


The provisions of Title III, Chapter 2 of Regulation (EC) No 883/2004 covering benefits in kind shall not apply to persons entitled to benefits in kind solely on the basis of a special scheme for civil servants in one of the Member States referred to in Annex 2 to this Regulation.

Chapter III – Death grants

44.

Article 42 Claim for death grants


For the purposes of applying Articles 42 and 43 of Regulation (EC) No 883/2004, the claim for death grants shall be sent to the institution in the claimant's place of residence.

Chapter IV – Invalidity benefits and old-age and survivors’ pensions

45.

Article 43 Calculation of benefit


1. For the purposes of calculating the theoretical amount and the actual amount of the benefit in accordance with Article 52(1)(b) of Regulation (EC) No 883/2004, the rules provided for in Article 12 i, i and i of this Regulation shall apply.

2. Where periods of voluntary or optional continued insurance have not been taken into account under Article 12 i of this Regulation, the institution of the Member State under whose legislation these periods were completed shall calculate the amount corresponding to these periods under the legislation it applies. The actual amount of the benefit, calculated in accordance with Article 52(1)(b) of Regulation (EC) No 883/2004, shall be increased by the amount corresponding to periods of voluntary or optional continued insurance.

3. The institution of each Member State shall calculate, under the legislation it applies, the amount due corresponding to periods of voluntary or optional continued insurance which, under Article 53(3)(c) of Regulation (EC) No 883/2004, shall not be subject to another Member State’s rules relating to withdrawal, reduction or suspension.

Article 44Inclusion of children’s periods of education

Without prejudice to the competence of the Member State determined in accordance with the provisions of Title II of Regulation (EC) No 883/2004, the institution of the Member State in which the beneficiary of the pension has resided for the longest period during the twelve months following the birth of the child must take into account the child’s periods of education in another Member State, provided that the legislation of another Member State is not applicable to the person concerned through the pursuit of an activity as an employed or self-employed person.

46.

Article 45Claim for benefits


A) Submission of the claim for benefits under Article 44 i of Regulation (EC) No 883/2004

1. In order to receive benefits under Article 44 i of Regulation (EC) No 883/2004, the claimant shall submit a claim to the institution of the Member State whose legislation was applicable at the time when the incapacity for work occurred followed by invalidity or the aggravation of this invalidity.

2. If sickness benefits in cash have been awarded, the expiry date of the period for awarding these benefits shall, where appropriate, be considered as the date of submission of the pension claim.

3. In the case referred to in Article 47(1)(b) of Regulation(EC) No 883/2004, the institution with which the person concerned was last insured shall inform the institution which initially paid the benefits of the amount and the date of commencement of the benefits under the applicable legislation. From that date benefits due before aggravation of the invalidity shall be withdrawn or reduced to the supplement referred to in Article 47 i of Regulation (EC) No 883/2004.

47.

B) Submission of other claims for benefits


4. In situations other than that referred to in Article 44 i of Regulation (EC) No 883/2004, the claimant shall submit a claim either to the institution in his/her place of residence if the person concerned was subject to the legislation of that institution at a given time or to the institution of the last Member State whose legislation was applicable to the person concerned in other cases.

5. The date of submission of the claim shall apply in all the institutions concerned.

6. By way of derogation from paragraph 5, if the claimant does not specify all the periods of insurance or residence which were subject to the legislation of other Member States, despite being specifically asked to do so, the date on which the claimant completes his/her initial claim or submits a new claim for the missing periods shall be considered as the date of submission of the claim to the institution applying the legislation in question, subject to more favourable provisions of that legislation.

7. A claim for benefits sent to the institution of a Member State automatically results in the concurrent award of benefits under the legislations of all the Member States in question for which the claimant meets the requirements.

8. However, this concurrent award of benefits shall not take place if, in accordance with Article 50 i of Regulation (EC) No 883/2004, the claimant has requested deferment of the award of benefits which would be obtained under the legislation of one of more Member States.

48.

Article 46Certificates and information to be submitted with the claim by the claimant


1. The claim shall be submitted by the claimant in accordance with the provisions of the legislation applied by the institution referred to in Article 45 i and i and be accompanied by the necessary supporting documents. The claimant shall indicate either the institution or institutions for invalidity insurance, old-age or death (pensions) of any Member State with which the insured person has been insured, or, in the case of an employed person, the employer or employers by whom he/she was employed in the territory of any Member State and shall produce any relevant certificates in his/her possession.

2. Where, in accordance with Article 50 i of Regulation (EC) No 883/2004, the claimant requests deferment of the award of old-age benefits which would be obtained under the legislation of one or more Member States, he/she shall specify under which legislation the deferment of the award of benefits is requested.

49.

Article 47Investigation of claims by the institutions


A) Investigating institution

1. The claim for benefits shall be investigated by the institution to which it is sent or forwarded in accordance with the provisions of Article 45 i or i. This institution shall be referred to hereafter as the “investigating institution”.

50.

B) Investigation of claims for benefits under Article 44 of Regulation (EC) No 883/2004


2. In the case referred to in Article 44 i of Regulation (EC) No 883/2004, the investigating institution shall send all the documents of the person concerned to the institution with which he/she was previously insured, which shall in turn examine the case.

3. Articles 48 to 52 shall not be applicable to the investigation of claims referred to in Article 44 of Regulation (EC) No 883/2004.

51.

C) Investigation of other claims for benefits


4. In situations other than that referred to in Article 44 of Regulation (EC) No 883/2004, the investigating institution shall immediately send claims for benefits to all the institutions in question so that they can all examine them immediately and concurrently. It shall notify them of periods of insurance or residence subject to their legislation, accompanied, where appropriate, by the certificates supplied by the claimant.

5. Each of the other institutions in question shall notify the investigating institution of periods of insurance or residence subject to their legislation. Except in the case provided for in Article 46 i of this Regulation, each institution shall also notify it of the amount of the independent benefit referred to in Article 52(1)(a) of Regulation (EC) No 883/2004 where the entitlement to benefits is satisfied exclusively under national law.

6. The investigating institution shall send all the information obtained to all the institutions in question. On the basis of this, each of the institutions in question shall calculate theoretical and actual amounts of benefits in accordance with Article 52(1)(b) of Regulation (EC) No 883/2004 and shall notify the investigating institution of these amounts.

7. As soon as the investigating institution establishes on the basis of the information referred to in paragraph 5 that the provisions of Article 46 i or Article 57 i or i of Regulation (EC) No 883/2004 must be applied, it shall inform the other institutions involved.

8. In order to enable the claimant to exercise his/her right to deferment provided for in Article 50 i of Regulation (EC) No 883/2004, the investigating institution shall notify him/her of all the information available to it so that he/she is aware of the consequences of the concurrent award of benefits which he/she might claim. The claimant shall send any claim for deferment of the award of benefits to the investigating institution, which shall send it immediately to the institution in question.

52.

Article 48Notification of decisions to the claimant


1. Each institution shall notify the claimant of its decision concerning the award of benefits in accordance with the applicable legislation. Each decision shall specify the remedies and periods allowed for appeals. A copy of each decision shall be sent to the investigating institution. Once it has received a copy of all the decisions, the investigating institution shall notify the claimant of these decisions in a summary note drawn up in his/her own language in accordance with Article 3 i. It shall also send this summary note to the other institutions in question.

2. The summary note sent to the claimant in accordance with Article 3 i shall be considered as a new decision against which an appeal may be lodged.

53.

Article 49Determination of the degree of invalidity


1. Where the provisions of Article 46 i of Regulation (EC) No 883/2004 are applicable, the investigating institution alone shall be authorised to take the decision concerning the degree of invalidity of the claimant. It shall take this decision as soon as it can determine whether the conditions for eligibility laid down in the applicable legislation are met, taking into account, where appropriate, the provisions of Articles 6 and 51 of Regulation (EC) No 883/2004. It shall immediately notify the other institutions in question of this decision.

Where the eligibility criteria, other than those relating to the degree of invalidity, laid down in the applicable legislation are not met, taking into account the provisions of Articles 6 and 51 of Regulation (EC) No 883/2004, the investigating institution shall immediately inform the competent institution of the last Member State to whose legislation the claimant was subject. The latter institution shall be authorised to take the decision concerning the degree of invalidity of the claimant if the conditions for eligibility laid down in the applicable legislation are met; it shall immediately notify the other institutions involved of this decision.

1. It is advisable, where appropriate, when determining eligibility, to go back under the same procedure as far as the competent institution for invalidity in the Member State to whose legislation the claimant was first subject.

2. Where the provisions of Article 46 i of Regulation (EC) No 883/2004 are not applicable, each institution shall have the possibility of having the claimant examined by a doctor of their choice to determine the degree of invalidity. However, the institution of a Member State shall take into consideration documents, medical reports and administrative information collected by the institution of any other Member State as if they had been drawn up in its own Member State.

3. Where the medical examination takes place in a Member State other than the Member State of residence of the person concerned, the relevant travel and subsistence allowances shall be paid for by the institution which requested the medical examination.

54.

Article 50Provisional instalments and advance payment of benefits


1. Notwithstanding Article 7 of this Regulation, any institution which establishes while investigating a claim for benefits that the claimant is entitled to an independent benefit under the applicable legislation, in accordance with Article 52(1)(a) of Regulation (EC) No 883/2004, shall pay this benefit immediately. This payment shall be considered provisional if the amount may be affected by the result of the claim investigation procedure.

2. Where no provisional benefit can be paid to the claimant under paragraph 1 but it is evident from the information received that the claimant is eligible under Article 52(1)(b) of Regulation (EC) No 883/2004, the investigating institution shall make a recoverable advance payment, the amount of which shall be as close as possible to the amount which will probably be paid under Article 52(1)(b) of Regulation (EC) No 883/2004.

3. The institution which is obliged to pay the provisional benefits under paragraphs 1 or 2 shall inform the claimant immediately, specifically drawing his/her attention to the provisional nature of the measure and to the fact that an appeal may be lodged only against the future payment decision.

55.

Article 51New calculation of benefits


1. Where there is a new calculation of benefits in accordance with Articles 48 i and i, 50 i and 59 i of Regulation (EC) No 883/2004, Article 50 of this Regulation shall be applicable mutatis mutandis .

2. Where there is a new calculation, withdrawal or suspension of the benefit, the institution which took the decision shall inform the person concerned immediately in accordance with the procedure provided for in Article 3 i to i and shall inform each of the institutions in respect of which the person concerned has an entitlement.

56.

Article 52Measures intended to accelerate the payment of benefits


1. Where the legislation of a Member State is applicable to a person, the body designated by the competent authority of that Member State shall send to the designated body of the Member State of nationality of that person all the information relating to the identity of that person, including the identification number allocated to that person by the competent institution for pensions in the first Member State and the name of the said competent institution. It shall also furnish any other information likely to facilitate and accelerate the subsequent payment of pensions.

2. For the purposes of applying paragraph 1, stateless persons and refugees as well as persons who have never been subject to the legislation of their Member State of nationality shall be considered as nationals of the Member State to whose legislation they were first subject.

3. The institutions in question, acting on a request from the person concerned or the institution with which he/she is insured at that time, shall draw up the insurance history of the person concerned, starting not later than one year before the date on which the person concerned reaches the age of entitlement to the pension.

4. The Administrative Commission shall lay down implementing measures for the provisions in the previous paragraphs.

57.

Article 53Coordination measures in a Member State


1. Where national legislation includes rules for determining the institution responsible for paying the pension, those rules shall be applied, taking into account only periods of insurance completed under the legislation of the Member State concerned.

2. Where national legislation includes rules for the coordination of special schemes for civil servants and the general scheme for employed persons, those rules shall not be affected by the provisions of Regulation (EC) No 883/2004 and of this Regulation.

Chapter V – Unemployment benefits

58.

Article 54 Calculation of benefits


1. For the purposes of applying Article 62 i of Regulation (EC) No 883/2004, the competent institution of the Member State to whose legislation the person concerned was subject in respect of his/her last activity as an employed or self-employed person shall, at the request of the institution in the place of residence, provide it with all the information necessary to calculate unemployment benefits, in particular the salary or professional income received.

2. For the purposes of applying Article 62 of Regulation (EC) No 883/2004, where the worker referred to in Article 65 i of the said Regulation, other than a frontier worker, has never been employed under the legislation of the Member State of residence, unemployment benefits shall be calculated on the basis of the normal pay in that Member State for a job equivalent or similar to the one he/she last pursued in the territory of another Member State.

3. For the purposes of applying Article 62 of Regulation (EC) No 883/2004 and notwithstanding Article 63 of the said Regulation, the competent institution of a Member State whose legislation provides that the calculation of benefits varies with the number of members of the family shall also take into account the members of the family of the person concerned residing in another Member State as if they resided in the competent Member State. This provision shall not apply where, in the Member State of residence of members of the family, another person is entitled to unemployment benefits calculated on the basis of the number of members of the family.

59.

Article 55Conditions and restrictions on the retention of the entitlement to benefits for unemployed persons going to another Member State


1. In order to be covered by the provisions of Article 64 of Regulation (EC) No 883/2004, the unemployed person going to another Member State shall inform the competent institution prior to his/her departure and request a document certifying that he/she retains entitlement to benefits under the conditions laid down in Article 64(1)(b) of Regulation (EC) No 883/2004.

That institution shall inform the person concerned of his/her obligations and shall provide the abovementioned document which includes the following information:

a) the date on which the unemployed person ceased to be available to the employment services of the competent State;

b) the period granted in accordance with Article 64(1)(b) of Regulation (EC) No 883/2004 in order to register as a person seeking work in the Member State to which the unemployed person has gone;

c) the maximum period during which the entitlement to benefits may be retained in accordance with Article 64(1)(c) of Regulation (EC) No 883/2004;

d) circumstances likely to affect the entitlement to benefits.

2. The unemployed person shall register as a person seeking work with the employment services of the Member State to which he/she goes in accordance with the provisions of Article 64(1)(b) of Regulation (EC) No 883/2004 and shall send the document referred to in paragraph i to the institution of that Member State. If he/she fails to do this, the institution in the place to which the unemployed person has gone shall contact the competent institution in order to obtain the necessary information.

3. The employment services in the Member State to which the unemployed person has gone to seek employment shall inform the unemployed person of his/her obligations.

4. The institution in the place to which the unemployed person has gone shall immediately inform the competent institution of the date on which the unemployed person registered with the employment services and of his/her new address.

Every month throughout the period during which the unemployed person retains entitlement to benefits, it shall send to the competent institution relevant information concerning the follow-up of the unemployed person’s situation and in particular whether the latter is still registered with the employment services and is complying with organised checking procedures.

5. The institution in the place to which the unemployed person has gone shall carry out or arrange for checks to be carried out as if the person concerned were an unemployed person obtaining benefits under its own legislation. It shall immediately inform the competent institution of the occurrence of any circumstance referred to in paragraph 1(d).

6. The competent authorities or competent institutions of two or more Member States may agree amongst themselves a set of measures to promote the job-seeking activities of unemployed persons who go to one of those Member States under Article 64 of Regulation (EC) No 883/2004.

60.

Article 56Unemployed persons who resided in a Member State other than the competent Member State


1. Where the unemployed person decides, in accordance with Article 65 i of Regulation (EC) No 883/2004, to register as a person seeking work in the Member State in which he/she resides as well as in the Member State in which he/she pursued his/her last activity as an employed or self-employed person, he/she shall inform as a priority the institution and employment services of his/her place of residence.

At the request of the employment services of the Member State in which he/she pursued his/her last activity as an employed or self-employed person, the employment services in the place of residence shall send the relevant information concerning the unemployed person’s registration and search for employment.

2. Where the entitlement to benefits is linked to the fulfilment of certain obligations by the unemployed person under the legislation applicable in the Member State of residence, any commitments made by the unemployed person to the employment services of the other Member State shall be taken into account. The unemployed person shall be responsible for informing the institution in his/her place of residence of the timetable and nature of those commitments.

3. For the purposes of applying Article 65(5)(b) of Regulation (EC) No 883/2004, the institution of the Member State to whose legislation the worker was last subject shall inform the institution in the place of residence, when requested to do so by the latter, whether the worker is entitled to benefits under Article 64 of Regulation (EC) No 883/2004.

Chapter VI – Family benefits

61.

Article 57 Priority rules in the event of overlapping


For the purposes of applying Article 68(1)(b)(i) of Regulation (EC) No 883/2004, where the order of priority cannot be established on the basis of the children’s place of residence, each Member State concerned shall calculate the amount of benefits including the children not resident within its own territory. The competent institution of the Member State whose legislation provides for the highest level of benefits shall pay the full amount of such benefits and be reimbursed half this sum by the competent institution of the other Member State up to the limit of the amount provided for in the legislation of the latter Member State.

62.

Article 58Rules applicable where a person is subject successively to the legislation of several Member States during the same period or part of a period


1 If a person has been subject successively to the legislation of two Member States over a calendar month, irrespective of the payment dates for family benefits under the legislation of those Member States, the institution which has paid the family benefits by virtue of the first legislation applied during the period under consideration shall continue to do so until the end of the month in progress.

2 It shall inform the institution of the other Member State of the date on which it ceases to pay the family benefits in question.

63.

Article 59Procedure for applying Articles 67 and 68 of Regulation (EC) No 883/2004


1. The application for family benefits shall be addressed in the first place to:

a) the institution of the Member State of employment if there is an entitlement to benefits on the basis of activity as an employed or self-employed person, and the applicant’s spouse does not hold entitlement to benefits on the basis of an activity as an employed or self-employed person in another Member State;

b) in all other cases, the institution of the place of residence of the children, or one of those institutions if the children reside in different Member States.

2. The institution to which application is made in accordance with paragraph 1 shall examine the application on the basis of the detailed information supplied by the applicant, and make a provisional decision where necessary on the priority rules to be applied, taking into account the overall de facto and legal situation of the applicant’s family. It shall inform the applicant of its decision and make provisional payment of the benefits provided for by the legislation it applies.

3. All institutions of the other Member State(s) whose legislation may potentially provide for entitlement to benefits shall be informed of the provisional decision on the priority rules applicable in the given case. These institutions shall have one month from the date on which the decision is communicated within which to contest it or request further information.

Beyond this deadline, the decision of the institution to which application was made in accordance with paragraph 1 shall be enforceable vis-à-vis the institutions concerned. On this basis, each of these institutions shall draw up a statement of the amount of benefits due to the beneficiary and transmit it to the institution dealing with the claim as soon as possible.

4. The institution to which application has been made in accordance with paragraph 1 shall inform the applicant of the decision taken in respect of the order of priorities for award of the benefits, accompanied by the statement of benefits due drawn up by the institutions concerned.

5. If the institution which has supplied benefits on a provisional basis has paid more than the amount for which it is ultimately responsible, it shall claim reimbursement of the excess from the institution with primary responsibility in accordance with the procedure laid down in Article 71.

64.

Article 60Procedure for applying Article 69 of Regulation (EC) No 883/2004


For the purposes of applying Article 69 of Regulation (EC) No 883/2004 , if the competent institution finds that there is no entitlement under the legislation being applied, it shall immediately forward the application, together with all relevant documents and information, to the institution of the Member State to whose legislation the person concerned has been subject for the longest period of time. In some cases, this may mean referring back, under the same conditions, to the institution of the Member State under whose legislation the person concerned has completed the shortest of his or her insurance or residence periods.

Title IV – Financial provisions

Chapter I – Reimbursement of the cost of benefits in application of Article 35 i and Article 41 of Regulation (EC) No 883/2004

Section 1 – Reimbursement on the basis of actual expenditure

65.

Article 61 Principles


1. For the purposes of applying Article 35 i and Article 41 of Regulation (EC) No 883/2004, the actual amount of benefits in kind, as shown in the accounts of the institution that provided them, shall be reimbursed to the latter by the competent institution, except where Article 62 of this Regulation is applicable.

2. For the purposes of applying paragraph 1, the competent institution shall be the institution of the place of residence of the members of the insured person’s family who reside in a different Member State from the insured person, in the cases referred to in Article 20 i of Regulation (EC) No 883/2004; and the institution of the place of residence of the pensioner and the members of his/her family, in the cases referred to in Article 27 i of Regulation (EC) No 883/2004.

3. If any or part of the actual amount of the benefits referred to in paragraph 1 is not shown in the accounts of the institution that provided them, the amount to be refunded shall be determined on the basis of a lump-sum payment calculated from all the appropriate references obtained from the data available. The Administrative Commission shall assess the bases to be used for calculation of the lump-sum payment and shall decide the amount thereof.

4. Higher rates than those applicable to the benefits in kind provided to insured persons subject to the legislation applied by the institution providing the benefits referred to in paragraph 1 may not be taken into account in the reimbursement.

5. The provisions of paragraph 1 shall apply mutatis mutandis to the reimbursement of cash benefits paid in accordance with the provisions of the second sentence of Article 27 i.

Section 2 – Reimbursement of benefits on a lump-sum basis

66.

Article 62 Identification of the Member States concerned


1. The Member States referred to in Article 35 i of Regulation (EC) No 883/2004 whose legal or administrative structures are such that the use of reimbursement on the basis of actual expenditure is not appropriate are indicated in Annex 3 to this Regulation.

2. A Member State may decide not to use the lump-sum reimbursement method, provided that this decision takes effect at the beginning of a calendar year. In this case, the Member State concerned shall inform the Administrative Commission of the change at the latest by the end of June of the year preceding that in which the change is to take effect.

3. In the case of the Member States indicated in Annex 3 to this Regulation, the amount of benefits in kind supplied to family members who do not reside in the same Member State as the insured person, as provided for in Article 17 of Regulation (EC) No 883/2004, and to pensioners and members of their family, as provided for in Article 22, Article 24 i and Articles 25 and 26 of Regulation (EC) No 883/2004, shall be reimbursed by the competent institutions to the institutions providing the said benefits, on the basis of a fixed amount established for each calendar year. This fixed amount shall be as close as possible to actual expenditure.

67.

Article 63Lump-sum calculation method


1. For each debtor Member State, the lump-sum for a calendar year shall be equal to the sum of the products obtained by multiplying the annual average cost per person, broken down by age group, by the number of persons to be taken into account in each age group and applying a reduction to the result.

LUMP-SUM AMOUNT = [afbeelding - zie origineel document]

Where:

- the summation index (i = 1, 2 and 3) represents the three age groups used for calculating the lump sum:

i = 1: persons aged under 20

i = 2: persons aged from 20 to 64

i = 3: persons aged 65 and over

- the coefficient X (number between 0 and 1) represents the reduction as defined in paragraph 4.

- Yi represents the annual average cost for persons in age group i, as defined in paragraph 2.

- Zi represents the average number of people in age group i to be taken into account, as defined in paragraph 3.

2. The annual average cost per person (Yi) in age group i shall be obtained by dividing annual expenditure on all benefits in kind provided by the institutions of the creditor Member State to all persons in the age group concerned subject to its legislation and residing within its territory by the average number of persons in that age group. Expenditure under the regime referred to in Article 23 shall be included in this calculation.

3. For each debtor Member State, the average number of persons (Zi) in age group i shall be equal to the number of persons subject to that Member State’s legislation and eligible to receive benefits in kind from the creditor Member State at its expense.

The number of persons to be taken into account shall be determined from an inventory kept for that purpose by the institution of the place of residence, based on documentary evidence of the entitlement of the beneficiaries supplied by the competent institution.

4. The reduction to be applied to the lump sum shall, in principle, be equal to 15% (X = 0.15). It shall be equal to 20% (X = 0.20) where the competent Member State is one of those listed in Annex IV to Regulation (EC) No 883/2004 .

5. The Administrative Commission shall establish the methods for determining the elements for calculating the lump sum referred to in the above paragraphs.

68.

Article 64Notification of annual average costs


The annual average cost per person in each age group for a specific year shall be communicated to the Audit Board by 30 June of the second year following the year in question at the latest. If notification is not made by this deadline, the annual average cost per person for the previous year will be taken.

The annual average costs shall be published in the Official Journal of the European Union .

Section 3 – Common provisions

69.

Article 65 Procedure for reimbursement between institutions


The reimbursements between the institutions of the Member States, provided for in Articles 35 and 41 of Regulation (EC) No 883/2004, shall be made via the liaison body.

70.

Article 66Deadlines for the introduction and settlement of claims


1. Claims based on actual expenditure shall be introduced within six months of the end of the calendar half-year during which the benefits were provided.

2. Lump-sum claims for a calendar year shall be presented within the six-month period following the month during which the average costs for the year concerned were published in the Official Journal of the European Union .

3. Claims introduced after the deadlines specified in paragraphs 1 and 2 shall not be considered.

4. The claims shall be verified and paid by the debtor institution within six months of the end of the calendar half-year during which they are introduced. Where applicable, the debtor institution shall inform the creditor institution of any decision to reject certain expenditure within the six-month period.

5. Any dispute as to the nature and amount of a claim shall be settled within one year following the end of the calendar half-year during which the claim was introduced. Beyond this deadline, the claim shall be considered payable.

71.

Article 67Interest on late payments


1. From the end of the six-month period referred to in Article 66 i, interest shall be added to outstanding claims. This interest shall be calculated on the basis of the reference rate applied by the European Central Bank to its main refinancing operations. The reference rate applicable shall be that in force on the first day of the month on which the payment is due. The rate shall be increased by two percentage points from the end of the one-year period referred to in Article 66 i.

2. The interest calculation method and base shall be established by the Administrative Commission.

72.

Article 68Statement of annual accounts


1. The Administrative Commission shall establish the claims situation for each calendar year in accordance with Article 72(g) of Regulation (EC) No 883/2004, on the basis of the Audit Board’s report. To this end, the liaison bodies shall notify the Audit Board, by the deadlines and according to the procedures laid down by the latter, of the amount of the claims introduced, settled or contested (creditor position) and the amount of claims received, settled or contested (debtor position).

2. The Administrative Commission may perform any appropriate checks on the statistical and accounting data used as the basis for drawing up the annual statement of claims provided for in paragraph 1 in order, in particular, to ensure that they comply with the rules laid down under this Title.

Chapter II – Reimbursement of unemployment benefits pursuant to Article 65 of Regulation (EC) No 883/2004

73.

Article 69 Reimbursement of unemployment benefits


If there is no agreement in accordance with Article 65 i of Regulation (EC) No 883/2004, the institution of the place of residence shall request reimbursement of unemployment benefits by virtue of Article 65 i and i of Regulation (EC) No 883/2004 from the institution of the Member State to whose legislation the beneficiary was last subject, within six months of the last payment of unemployment benefit for which reimbursement is requested. The request shall indicate the amount of benefit paid during the three- or five-month period referred to in paragraphs 6 and 7 of Article 65 of Regulation (EC) No 883/2004, the period for which the benefits were paid and the identification data of the unemployed person.

In the event of any dispute between the institutions concerning these amounts, the provisions of Article 66 i and i of this Regulation shall apply mutatis mutandis .

Chapter III – Recovery of benefits paid in excess, recovery of provisional payments, compensation, assistance with recovery

74.

Section 1 - Principles


Article 70

1. For the purposes of applying Article 84 of Regulation (EC) No 883/2004 and within the framework defined therein, recovery of claims shall, wherever possible, be by way of compensation either between the creditor institutions (hereinafter referred to as “the applicant parties”), and the debtor institutions (hereinafter referred to as “the requested parties”), or vis-à-vis the insured person in accordance with Articles 71 and 72 of this Regulation.

If it has not been possible to recover all or any of the claim via the compensation procedure referred to in the previous paragraph, the remainder of the amount payable by the beneficiary shall be recovered in accordance with the provisions of Articles 73 to 82.

2. The liaison body shall be considered as the requested party in respect of the claims addressed to it.

75.

Section 2 - Compensation


Article 71 Cash benefits received unduly or in excess

1. If the institution of a Member State has paid benefits to a recipient in excess of his or her entitlement, that institution shall, within the terms and limits laid down in the legislation it applies, request the institution of any other Member State responsible for paying benefits to that beneficiary to deduct the amount paid in excess from further sums owed to the beneficiary. The latter institution shall deduct the amount concerned subject to the conditions and limits applying to this kind of compensation system by the legislation it applies in the same way as if it had made the overpayments itself, and shall transfer the amount deducted to the creditor institution.

2. In connection with Article 6, by two months at the latest after the applicable legislation has been determined or the institution responsible for paying the benefits identified, the institution that provisionally paid the cash benefits shall draw up a statement of the amount owed to it by the competent institution. Where contributions have been paid provisionally by the beneficiary and/or his or her employer, these shall be taken into account in establishing the amount owed.

The competent institution responsible for paying the benefits shall deduct the amount due in respect of the provisional payment from the amounts it owes to the beneficiary. The debtor institution shall deduct this amount subject to the conditions and limits applying to this kind of compensation system under the legislation it applies and transfer the amount deducted immediately to the creditor institution.

3. If an insured person has received social welfare assistance in one Member State during a period in which he/she was entitled to benefits under the legislation of another Member State, the body which provided the assistance may, if it is legally entitled to reclaim the benefits due to the said person, request the institution of any other Member State responsible for paying benefits in favour of that person to deduct the amount of assistance paid from the amounts which the latter pays to the said person.

This provision shall apply mutatis mutandis to any family member of an insured person who has received assistance in the territory of a Member State during a period in which the insured person was entitled to benefits under the legislation of another Member State in respect of the family member concerned.The creditor institution shall send a statement of the amount due to the debtor institution, which shall then deduct the amount subject to the conditions and limits laid down for this kind of compensation system by the legislation it applies and transfer the amount immediately to the creditor body.

4. In the cases specified in paragraphs 2 and 3, the competent institution shall address a statement to the person concerned showing the amounts still due or paid in excess according to the legislation it applies.

76.

Article 72Contributions paid unduly or in excess


In the terms of Article 6, an institution which has provisionally received contributions from an insured person and/or his/her employer shall not reimburse the amounts in question to the persons who paid them until it has ascertained from the competent institution the sums due to it under Article 6 i.

77.

Section 3 - Recovery


Article 73 Requests for information

1. The requested party shall provided the applicant party at the latter’s request with all relevant information for recovery of a claim.

In order to obtain such information, the requested party shall make use of the powers conferred under the laws, regulations or administrative provisions applicable to the recovery of similar claims arising in its own Member State.

2. The request for information shall indicate the name, address, and any other information to which the applicant party normally has access on the person to whom the information to be provided relates and the nature and amount of the claim in respect of which the request is being made.

3. The requested party shall not be obliged to transmit information it would not be able to obtain for the purposes of recovering similar claims arising in its own Member State.

4. The requested party shall inform the applicant party of any reasons preventing the information requested from being supplied.

78.

Article 74Notification


1. At the request of the applicant party, the requested party shall notify the addressee, in accordance with the rules of law in force on the notification of similar acts in its own Member State, of all instruments and decisions, including those of a judicial nature, relating to a claim or its recovery, emanating from the Member State of the applicant party.

2. The request for notification shall indicate the name and address of the addressee and any other information concerning the latter to which the applicant party would normally have access, the nature and the subject of the instrument or decision to be notified and, where applicable, the name, address and any other information to which the applicant party would normally have access on the debtor and the claim to which the instrument or decision relates, and any other useful information.

3. The requested party shall inform the applicant party immediately of the action taken in response to the request for notification and, more particularly, of the date on which the decision or instrument was forwarded to the addressee.

79.

Article 75Request for recovery


1. The request for recovery of contributions or of benefits paid unduly or in excess, addressed by the applicant party to the requested party, shall be accompanied by an official or certified copy of the instrument permitting its enforcement, issued in the Member State of the applicant party and, where applicable, the original or a certified copy of other documents needed for recovery.

2. The applicant body may make a request for recovery only if:

a) the claim and/or the instrument permitting its enforcement are not contested in the Member State, except where the second subparagraph of Article 78 i is applied;

b) it has, in its own Member State, applied the recovery procedure available to it on the basis of the instrument referred to in paragraph 1, and the measures taken will not result in the payment in full of the claim.

3. The recovery request shall indicate:

a) the name, address and any other relevant information relating to the identification of the person concerned and/or to the third party holding his or her assets;

b) any information relevant for identifying the requested party;

c) the instrument permitting enforcement, issued in the Member State of the applicant party;

d) the nature and amount of the claim, including the principal, the interest and any other penalties, fines and costs due, indicated in the currencies of both parties’ Member States;

e) the date of notification of the instrument to the addressee by the applicant party and/or the requested party;

f) the date from which and the period during which enforcement is possible under the laws in force in the Member State of the applicant party;

g) any other relevant information.

4. The request for recovery shall also contain a statement by the applicant party confirming that the conditions laid down in paragraph 2 have been fulfilled.

5. As soon as any relevant information relating to the matter which gave rise to the request for recovery comes to the knowledge of the applicant party, the latter shall forward it to the requested party.

80.

Article 76Instrument permitting enforcement of the recovery


1. The instrument permitting enforcement of recovery of the claim shall be directly recognised and treated automatically as an instrument permitting the enforcement of a claim of the requested party.

2. Notwithstanding paragraph 1, the instrument permitting enforcement of the claim may, where appropriate and in accordance with the provisions in force in the Member State of the requested body, be accepted, recognized, supplemented, or replaced by an instrument authorising enforcement in the territory of that Member State.

Within three months of the date of receipt of the request for recovery, the competent authorities shall endeavour to complete the formalities for such acceptance, recognition, supplementing or replacement, except where the provisions of the third subparagraph are applied. They may not be refused if the instrument permitting enforcement is properly drawn up. If the three-month deadline is exceeded, the requested party shall inform the applicant party of the reasons for the delay.

If any of these formalities should give rise to contestation concerning the claim and/or the instrument permitting enforcement issued by the applicant party, Article 78 shall apply.

81.

Article 77Payment arrangements and deadlines


1. Claims shall be recovered in the currency of the Member State of the requested party. The requested party shall transfer the entire amount of the recovered claim to the applicant party.

2. Where the laws, regulations or administrative provisions in force in its own Member State so permit, and after consulting the applicant party, the requested party may allow the debtor time to pay or authorise payment by instalment. Any interest charged by the requested party in respect of such extra time to pay shall also be remitted to the applicant party.

From the date on which the instrument permitting enforcement is directly recognised or accepted, recognised, supplemented or replaced in accordance with Article 76, interest shall be charged for late payment under the laws, regulations and administrative provisions in force in the Member State of the requested party and shall also be remitted to the applicant party.

82.

Article 78Contestation of the claim or of the instrument permitting enforcement of its recovery


1. If, in the course of the recovery procedure, the claim and/or the instrument permitting its enforcement issued in the Member State of the applicant party are contested by the party concerned, the action shall be brought by the latter before the competent body of the Member State of the applicant party in accordance with the laws in force there. The applicant party shall notify the requested party of this action. The requested party may also be notified of it by the party concerned.

2. As soon as the requested party has received the notification referred to in paragraph 1 either from the applicant party or from the party concerned, it shall suspend the enforcement procedure pending the decision of the body competent in the matter, unless a request to the contrary is made by the applicant party in accordance with the second subparagraph. Should the requested party deem it necessary, it may take precautionary measures to guarantee recovery in as far as the laws or regulations of its own Member State allow such action for similar claims.

Notwithstanding the first subparagraph above, the applicant party may, in accordance with the laws, regulations and administrative practices in force in its own Member State, request the requested party to recover a contested claim, provided that the laws, regulations and administrative practices in the requested party’s Member State so permit. If the contestation is settled in favour of the debtor, the applicant party shall be liable to reimburse any sums recovered, together with any compensation due in accordance with the legislation in force in the requested party’s Member State.

3. Where the contestation concerns enforcement measures taken in the Member State of the requested party, the action shall be brought before the competent body of that Member State in accordance with its laws and regulations.

4. Where the competent body before which the action is brought in accordance with paragraph 1 is a judicial or administrative tribunal, the decision of that tribunal, if favourable to the applicant party and permitting recovery of the claim in the Member State of the applicant party, shall constitute the “instrument permitting enforcement” and recovery of the claim shall proceed on the basis of that decision.

83.

Article 79Limits applying to assistance


1. The applicant party shall not be obliged:

a) to grant the assistance provided for in Articles 73 to 78 if recovery of the claim may, because of the situation of the debtor, create serious economic or social difficulties in the latter’s Member State, in as far as the laws, regulations or administrative practices in the Member State of the applicant party allow such action for similar national claims;

b) to grant the assistance provided for in Articles 73 to 78, if the initial request under Articles 73 to 75 applies to claims more than five years old, counted from the time the instrument permitting enforcement is established in accordance with the laws, regulations or administrative practices of the Member State of the applicant party up to the date of the request. However, if the claim or instrument is contested, the time limit shall commence from the moment that the applicant state establishes that the claim or the instrument may no longer be contested.

84.

Article 80Precautionary measures


Upon reasoned request by the applicant party, the requested party shall take precautionary measures to ensure recovery of a claim in as far as the laws and regulations in force in the Member State of the requested party so permit.

For the purposes of implementing the above paragraph, the provisions and procedures laid down in Articles 73 to 75 and Article 77 shall apply mutatis mutandis .

85.

Article 81Costs


1. No enforcement costs are payable where the debt is recovered via the compensation method provided for in Articles 71 and 72.

2. The requested party shall also recover from the person concerned any costs linked to recovery pursuant to Articles 73 to 77 and Article 81 and retain them, in accordance with the laws and regulations of that party’s Member State applicable to similar claims.

3. The Member States shall waive all claims upon each other for reimbursement of costs arising from the mutual assistance afforded under Regulation (EC) No 883/2004 or this Regulation.

4. Where recovery poses a specific problem or concerns a very large amount in costs, the requesting and requested parties may agree reimbursement arrangements specific to the cases in question.

5. The competent authority of the applicant party’s Member State shall remain liable to the competent authority of the requested party’s Member State for any costs and losses incurred as a result of actions deemed to be unfounded as far as the substance of the claim or the validity of the instrument issued by the applicant party is concerned.

Title V – Miscellaneous, transitional and final provisions

86.

Article 82 Administrative checks and medical examination


1. Without prejudice to the provisions of Article 27, where a recipient of benefits as referred to in Chapters I, II and IV of Title III is staying or residing within the territory of a Member State other than that in which the debtor institution is located, the medical examination shall be carried out, at the request of the latter institution, by the institution of the beneficiary’s place of stay or residence as provided for in the legislation applied by this latter institution. In this case, the debtor institution shall be bound by the findings of the institution of the place of stay or residence.If, by virtue of Article 82 of Regulation (EC) No 883/2004, the institution of the place of stay or residence is called upon to perform a medical examination, it shall follow the procedures laid down by the legislation it applies. If no such procedures have been specified, it shall consult the debtor institution on the procedures to be followed.The debtor institution shall reserve the right to have the beneficiary examined subsequently by a doctor of its own choice. However, the beneficiary may be asked to return to the Member State of the debtor institution only if he or she is able to make the journey without prejudice to his/her health and the cost of travel and accommodation is paid for by the debtor institution.

2. Where a recipient of benefits as referred to in Chapters I, II and IV of Title III is staying or residing in the territory of a Member State other than that in which the debtor institution is located, the administrative check shall, at the request of the debtor institution, be performed by the institution of the beneficiary's place of stay or residence. The debtor institution shall inform the institution of the place of stay or residence of the points to be covered by the administrative check. If this information is not provided, the institution of the place of stay or residence shall undertake the check in accordance with its own legislation.The institution of the place or stay or residence shall forward a report to the debtor institution that requested the check.

87.

Article 83Notifications


1. The Member States shall notify the Commission of the details of the bodies defined in Article 1 (m), (q) and (r) of Regulation (EC) No 883/2004 and Article 1(a) and (b) of this Regulation, and the designated institutions referred to in Title II of this Regulation.

2. The bodies specified in paragraph 1 shall be provided with an electronic identity in the form of an identification code and electronic address.

3 The Administrative Commission shall establish the procedures, including the common format and model, for notification of the details specified in paragraph 1.

4. Annex 4 to this Regulation gives details of the public data base containing the information specified in paragraph 1.

5. The Member States shall be responsible for keeping the information specified in paragraph 1 up to date.

88.

Article 84 Documents


1. The models, forms and formats of the documents needed for application of Regulation (EC) No 883/2004 and of this Regulation shall be drawn up by the Administrative Commission in accordance with Article 4.The competent institutions shall make them available to the persons covered by this Regulation.

2. The competent authorities or institutions of two or more Member States may agree among themselves on the use of simplified documents or exchange of simplified data. The Administrative Commission shall be notified of such agreements.

89.

Article 85Information


1. The Administrative Commission shall prepare the information needed to ensure that the parties concerned are aware of their rights and the administrative formalities required to assert them. This information shall, where possible, be disseminated electronically via publication on line on sites accessible to the public. The Administrative Commission shall ensure that the information is regularly updated.

2. The Advisory Committee referred to in Article 75 of Regulation (EC) No 883/2004 may issue opinions and recommendations on improving the information and its dissemination.

3. The Member States shall ensure that the necessary information is made available to the persons covered by Regulation (EC) No 883/2004 in order to inform them of the changes introduced by Regulation (EC) No 883/2004 and by this Regulation to enable them to assert their rights.

4. The competent authorities shall ensure that their institutions are aware of and apply all the Community provisions, legislative or otherwise, including the decisions of the Administrative Commission, in the areas covered by and within the terms of Regulation (EC) No 883/2004 and this Regulation.

90.

Article 86Currency conversion


For the purposes of applying Regulation (EC) No 883/2004 and this Regulation, the exchange rate between two currencies shall be the reference rate published by the European Central Bank.

91.

Article 87Statistics


The competent authorities shall compile statistics on the application of Regulation (EC) No 883/2004 and this Regulation and forward them to the secretariat of the Administrative Commission. These data shall be collected and organised according to the plan and method defined by the Administrative Commission. The Commission shall be responsible for disseminating the information.

92.

Article 88Amendment of the Annexes


Annexes 1, 2, 3 and 4 to this Regulation and Annexes I, VI, VII, VIII and IX of Regulation (EC) No 883/2004 may be amended by Commission Regulation at the request of the Member State(s) concerned or their competent authorities, subject to the unanimous agreement of the Administrative Commission.

93.

Article 89Transitional provisions


The provisions of Article 87 of Regulation (EC) No 883/2004 shall apply to the situations covered by this Regulation.

94.

Article 90Repeal


1. Council Regulation (EEC) No 574/72 is repealed with effect from the date of application of this Regulation.However, Regulation (EEC) No 574/72 shall remain in force and continue to have legal effect for the purposes of:

a) Council Regulation (EC) No 859/2003 of 14 May 2003 extending the provisions of Regulation (EEC) No 1408/71 and Regulation (EEC) No 574/72 to nationals of third countries who are not already covered by those provisions solely on the grounds of their nationality i until such time as the said Regulation is repealed or amended;

b) Council Regulation (EEC) No 1661/85 of 13 June 1985 laying down the technical adaptations to the Community rules on social security for migrant workers with regard to Greenland i, until such time as the said Regulation is repealed or amended;

c) the Agreement on the European Economic Area i, the Agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of persons i and other agreements containing a reference to Regulation (EEC) No 574/72, until such time as the said agreements are amended on the basis of this Regulation.

2. In Council Directive 98/49/EC of 29 June 1998 on safeguarding the supplementary pension rights of employed and self-employed persons moving within the Community i the references to Regulation (EEC) No 574/72 shall be understood as referring to this Regulation.

95.

Article 91Final provisions


This Regulation shall enter into force six months after the day following that of its publication in the Official Journal of the European Union .

This Regulation shall be binding in its entirety and directly applicable in all Member States.

Done at Brussels,

96.

For the European Parliament For the Council


The President The President

ANNEX 1

Implementing provisions for bilateral agreements remaining in force and new implementing provisions for bilateral agreements

(Article 8 i and Article 9(2))

97.

ANNEX 2


Special schemes for civil servants

(Articles 31 and 41)

A. Special schemes for civil servants not covered by the provisions of Title III, Chapter 1 of Regulation (EC) No 883/2004 concerning benefits in kind

98.

1. Germany


Versorgungssystem für Beamte (sickness scheme for civil servants)

99.

2. Spain


Mutualismo administrativo (special scheme for civil servants, the armed forces and court administrative officials)

B. Special schemes for civil servants not covered by the provisions of Title III, Chapter 2 of Regulation (EC) No 883/2004 concerning benefits in kind

100.

1. Germany


Unfallfürsorge für Beamte (accident scheme for civil servants)

ANNEX 3

Member States reimbursing the cost of benefits on a lump-sum basis

(Article 62(1))

ANNEX 4

Competent authorities and institutions, institutions of the place of residence and stay, access points, institutions and bodies designated by the competent authorities.

(Article 84(4)) [afbeelding - zie origineel document] [afbeelding - zie origineel document] [afbeelding - zie origineel document]
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