31974Y0823(04)

DECISION No 95 of 24 January 1974 concerning the interpretation of Article 46 (2) of Regulation (EEC) No 1408/71 on the calculation of pro rata pensions

THE ADMINISTRATIVE COMMISSION OF THE EUROPEAN COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS,

Having regard to Article 81 (a) of Regulation (EEC) No 1408/71 under which it is made responsible for dealing with all questions of interpretation arising from Regulation (EEC) Nos 1408/71 and 574/72;

Having been requested to decide whether, for the purpose of applying Article 46 (2) of Regulation (EEC) No 1408/71, when the person concerned has been subject to legislation which provides that the amount of benefits is determined by taking into account periods presumed to have been completed after the occurrence of the event insured against, the competent institution administering that legislation should take these periods into consideration solely for calculating the theoretical amount referred to in Article 46 (2) (a) or also for calculating the actual amount of benefit referred to in Article 46 (2) (b) of the said Regulation;

Whereas if, pursuant to Article 46 (2) (a), the theoretical amount is calculated by taking into account all the periods completed under the legislation of the Member States to which the person concerned has been subject, Article 46 (2) (b) provides that the actual amount of the benefit must be established on the basis of the theoretical amount ; the length of the periods of insurance or residence completed before the occurrence of the event insured against under the legislation administered by that institution pro rata with the total length of the insurance or residence periods completed before the occurrence of the event insured against under the legislation of all the Member States concerned;

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

HAS DECIDED AS FOLLOWS:

1. The competent institution of a Member State whose legislation provides that the amount of benefits must be determined by taking into account periods presumed to have been completed after the occurrence of the event insured against shall take these periods into consideration solely for calculating the theoretical amount referred to in Article 46 (2) (a) of Regulation No 1408/71, and not for calculating the actual amount referred to in Article 46 (2) (b) of that Regulation.

2. This Decision shall be published in the Official Journal of the European Communities. It shall be applicable in the six original Member States as from 1 October 1972 and, in accordance with the Treaty of Accession, as from 1 April 1973 in the three new Member States.

The Chairman of the Administrative Commission

K. JANTZ