24.4.2010   

EN

Official Journal of the European Union

C 106/11

(1)

Where family benefits are payable by more than one Member State, entitlement to family benefits of a Member State where rights are available on the basis of receipt of a pension or on the basis of residence shall be suspended up to the amount of family benefits provided for by a Member State where rights are available on the basis of an activity as an employed or self-employed person. Therefore it is important to know what other periods count as an activity as an employed or self-employed person in order to establish the order of priority in the event of overlapping.

(2)

The legislations of certain Member States provide that periods of suspension or interruption of the actual activity as an employed or self-employed person by reason of holidays, unemployment, temporary incapacity for work, strikes or lock-outs, shall be treated either as periods of an activity as an employed or self-employed person for the acquisition of entitlement to family benefits or shall be regarded as periods of inactivity giving rise, where appropriate, either per se or as the result of a preceding activity as an employed or self-employed person, to the payment of family benefits.

(3)

Article 1(a) and (b) of Regulation (EC) No 883/2004 provide for definitions of ‘activity as an employed or self-employed person’ by referring to ‘any activity or equivalent situation treated as such for the purposes of the social security legislation of the Member State in which such activity or equivalent situation exists’.

(4)

It is essential to know the scope of ‘rights available on the basis of an activity as an employed or self-employed person’ found in Article 68 of Regulation (EC) No 883/2004 in order to avoid any uncertainties or differences in interpretation.

(5)

In a case where a worker’s status of active employment was suspended due to this person’s unpaid leave following the birth of a child and for the purpose of bringing up this child, the Court of Justice of the European Communities (3) referred to Article 73 of Council Regulation (EEC) No 1408/71 (4) in conjunction with Article 13(2)(a) of Regulation (EEC) No 1408/71 (5). Such unpaid leave must therefore also be qualified as an activity as an employed or self-employed person for the purposes of Article 68 of Regulation (EC) No 883/2004. In this context the Court reiterated that the above mentioned provisions can only apply for as long as the person concerned has the status of an employed or self-employed person within the meaning of Article 1(a) of Regulation (EEC) No 1408/71 (6) which requires that the person concerned is covered in at least one branch of social security. This excludes persons on unpaid leave who are no longer covered by any social security scheme of the relevant Member State.

(6)

There can only be a non-exhaustive list of cases where during a period of leave a person is deemed to be in an activity as an employed or self-employed person, due to the variety of systems for unpaid leave in Member States and ongoing changes in national legislation. Therefore it is not appropriate to define all the cases in which such unpaid leave is equivalent to an activity as an employed or self-employed person and those where the necessary close link to the gainful activity does not exist.

Acting in accordance with the conditions laid down in Article 71(2) of Regulation (EC) No 883/2004,

1.

For the purposes of Article 68 of Regulation (EC) No 883/2004, family benefits shall be regarded as ‘available on the basis of an activity as an employed or self-employed person’ in particular:

2.

This Decision shall be published in the Official Journal of the European Union. It shall apply from the date of entry into force of Regulation (EC) No 987/2009.