Regulation No 1408 71

[Chiquita Palafox]

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Whereas the need for a general revision of Council Regulation No 3 [4] on social security for migrant workers has become progressively more apparent, both in the light of the practical experience of its implementation since 1959 and as a result of amendments made to national legislations;

Whereas the existing provisions for co-ordination can, as a whole, be developed, improved and to some extent simplified at the same time, taking into account the considerable differences existing between national social security legislations;

Whereas it is appropriate at this time to bring together in a single legislative instrument all the basic provisions for implementing Article 51 of the Treaty for the benefit of workers, including frontier workers, seasonal workers and seamen;

Whereas the considerable differences existing between national legislations as regards the persons to whom they apply make it preferable to establish the principle that the Regulation applies to all nationals of Member States insured under social security schemes for employed persons;

Whereas the provisions for co-ordination of national social security legislations fall within the framework of freedom of movement for workers who are nationals of Member States and should, to this end, contribute towards the improvement of their standard of living and conditions of employment, by guaranteeing within the Community firstly equality of treatment for all nationals of Member States under the various national legislations and secondly social security benefits for workers and their dependents regardless of their place of employment or of residence;

Whereas these objectives must be attained in particular by aggregation of all the periods taken into account under the various national legislations for the purpose of acquiring and retaining the right to benefits and of calculating the amount of benefits, and by the provision of benefits for the various categories of persons covered by the Regulation regardless of their place of residence within the Community;

Whereas the provisions for co-ordination adopted for the implementation of Article 51 of the Treaty must guarantee to workers who move within the Community their accrued rights and advantages whilst not giving rise to unjustified overlapping of benefits;

Whereas to this end, persons entitled to benefits for invalidity, old age and death (pensions) must be able to enjoy all the benefits which have accrued to them in the various Member States; whereas, however, in order to avoid unjustified overlapping of benefits, which could result in particular from the duplication of insurance periods and other periods treated as such, it is necessary to limit the benefits to the greatest amount which would have been due to a worker from one of these States if he had spent all his working life there;

Whereas, in order to secure mobility of labour under improved conditions,it is necessary henceforth to ensure closer co-ordination between the unemployment insurance schemes and the unemployment assistance schemes of all the Member States; whereas it is therefore particularly appropriate, in order to facilitate search for employment in the various Member States, to grant to an unemployed worker, for a limited period, the unemployment benefits provided for by the legislation of the Member State to which he was last subject;

Whereas it seems desirable to improve the system under Regulation No 3 governing family benefits in cases of separated families, both as regards the categories of persons to be entitled to such benefits and as regards the machinery for awarding them;

Whereas, taking into account the problems relating to unemployment, it is appropriate to extend entitlement to family benefits to members of the families of unemployed workers residing in a Member State other than the one which is responsible for payment of the unemployment benefit;

Whereas, moreover, the current restrictions on the granting of family benefits should be abolished, and whereas in order to ensure payment of benefits for the maintenance of the members of separated families, leaving aside those benefits aimed largely at encouraging an increase in population, it would be preferable to lay down rules common to all the Member States and efforts should continue to this end; but in the face of great variations between national legislations a solution should be adopted to take this situation into account: payment of family benefits of the country of employment in respect of five countries, and payment of family allowances of the country of residence of members of the family where the country of employment is France;

Whereas by analogy with the solutions contained in Council Regulation (EEC) 1612/68[5] of 15 October 1968 on freedom of movement for workers within the Community, it is desirable to bring together in an Advisory Committee representatives of workers and employers to examine the problems dealt with by the Administrative Commission;

(i) subject to the restrictions set out in Annex V, any person who is insured, compulsorily or on an optional continued basis, for one or more of the contingencies covered by the branches of a social security scheme for employed persons;

(ii) any person who is compulsorily insured for one or more of the contingencies covered by the branches of social security dealt with in this Regulation, under a social security scheme for all residents or for the whole working population if such person:

(iii) any person who is voluntarily insured for one or more of the contingencies covered by the branches dealt with in this Regulation, under a social security scheme of a Member State for employed persons or for all residents or for certain categories of residents if such person has previously been compulsorily insured for the same contingency under a scheme for employed persons of the same Member State;

(b) 'frontier worker' means any worker employed in the territory of a Member State and residing in the territory of another Member State to which he returns as a rule daily or at least once a week; however, a frontier worker who is posted elsewhere in the territory of the same or another Member State by the undertaking to which he is normally attached and is prevented on account of such posting from returning daily or at least once a week to the place where he resides shall nevertheless retain the status of frontier worker for a period not exceeding four months;

(c) 'seasonal worker' means any worker who goes to the territory of a Member State other than the one in which he is resident to do work there of a seasonal nature for an undertaking or an employer of that State for a period which may on no account exceed eight months, and who stays in the territory of the said State for the duration of his work; work of a seasonal nature shall be taken to mean work which, being dependent on the succession of the seasons, automatically recurs each year;

(f) 'member of the family' means any person defined or recognised as a member of the family or designated as a member of the household by the legislation under which benefits are provided or, in the cases referred to in Article 22 (1) (a) and Article 39, by the legislation of the Member State in whose territory such person resides; where, however, the said legislations regard as a member of the family or a member of the household only a person living under the same roof as the worker, this condition shall be considered satisfied if the person in question is mainly dependent on that worker;

(g) 'survivor' means any person defined or recognised as such by the legislation under which the benefits are granted; where, however, the said legislation regards as a survivor only a person who was living under the same roof as the deceased worker, this condition shall be considered satisfied if such person was mainly dependent on the deceased worker;

(j) 'legislation' means all the laws, regulations, and other provisions and all other present or future implementing measures of each Member State relating to the branches and schemes of social security covered by Article 4 (1) and (2);

This term excludes provisions of existing or future industrial agreements, whether or not they have been the subject of a decision by the authorities rendering them compulsory or extending their scope. However, where such industrial agreements serve to implement an insurance requirement under the laws or regulations referred to in the preceding subparagraph, this restriction may at any time be lifted by a declaration by the Member State concerned, specifying the schemes of such a kind to which this Regulation applies. Notification shall be given of such declaration, which shall be published in accordance with the provisions of Article 96. The provisions of the preceding subparagraph shall not have the effect of exempting from application of this Regulation the schemes to which Regulation No 3 has been applied;

(k) 'social security convention' means any bilateral or multilateral instrument which binds or will bind two or more Member States exclusively, and any other multilateral instrument which binds or will bind at least two Member States and one or more other States in the field of social security, for all or part of the branches and schemes set out in Article 4 (1) and (2), together with agreements, of whatever kind, concluded pursuant to the said instruments;

(l) 'competent authority' means, in respect of each Member State, the Minister, Ministers or other equivalent authority responsible for social security schemes throughout or in any part of the territory of the State in question;

(ii) the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State in which the institution is situated, or

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