Keywords
Summary

Keywords

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1. Social security for migrant workers - Family allowances - Pensioners - Orphans' benefits - Benefits for which the State of residence is responsible - Greater benefits previously granted by another Member State - Entitlement to a benefit supplement notwithstanding any residence requirement

(Council Regulation No 1408/71, Arts 77(2)(b)(i) and 78(2)(b)(i) )

2. Social security for migrant workers - Community rules - Application ratione materiae - Declarations of Member States concerning the dependent children of pensioners - Scope

(Council Regulation No 1408/71, Arts 5 and 77)

3. Social security for migrant workers - Family allowances - Pensioners - Benefits for which the State of residence is responsible - Entitlement arising after establishment of residence in that State to a pension under the legislation of another Member State granting higher benefits - Entitlement to a benefit supplement taking account also of children born after the transfer of residence

(Council Regulation No 1408/71, Art. 77(2) )

4. Social security for migrant workers - Family allowances - Pensioners - Orphans' benefits - Recipient of benefits or benefit supplement resident in a Member State other than the Member State responsible for payment - Applicability of rules of the Member State responsible for payment which provide for a reduction in benefits according to the beneficiary' s income - Method of calculating the amount of benefits

(Council Regulation No 1408/71, Arts 77 and 78)

5. Social security for migrant workers - Family allowances - Pensioners - Orphans' benefits - Benefit supplement payable by a Member State other than the State of residence - Means by which the Member State responsible may obtain the necessary information for calculating the amounts due - Task of the Administrative Commission on Social Security for Migrant Workers

(EEC Treaty, Art. 5, Council Regulation No 1408/71, Art. 81(a) )

Summary

1. Where, in the cases referred to in Article 77(2)(b)(i) and Article 78(2)(b)(i) of Regulation No 1408/71, the amount of the benefits paid by the Member State of residence is less than the amount of the benefits payable by another Member State, the pensioner, or the orphan of the deceased worker, is entitled to receive from the competent institution of the latter Member State a benefit supplement equal to the difference between those two amounts, even where under the legislation of that State the grant of the benefits is subject to the condition that both the claimant and the qualifying child reside within its national territory.

2. The fact that certain benefits provided for under a national law or national rules for the dependent children of pensioners were not mentioned in the declaration referred to in Article 5 of Regulation No 1408/71 does not in itself establish that those benefits do not constitute benefits for the purposes of Article 77 of that regulation; however, where such benefits were mentioned in that declaration, they are to be regarded as benefits for the purposes of Article 77 of the regulation.

3. Recognition of entitlement to the benefit supplement for dependent children of pensioners seeks to promote freedom of movement for workers by ensuring that those concerned obtain the amount of benefits which would have been granted to them if they had continued to reside in the Member State granting the most favourable benefits; that entitlement exists even where the pensioner becomes entitled to a pension under the legislation of the Member State granting more favourable benefits after he transferred his residence to another Member State which is responsible for payment of benefits under Article 77(2) of Regulation No 1408/71.

The benefit supplement for dependent children of pensioners must be granted having regard to all the dependent children of the pensioner, including those born after he transferred his residence to the Member State which grants the less favourable benefits.

4. Where the legislation of the Member State responsible for the payment of the benefits referred to in Article 77 or Article 78 of Regulation No 1408/71 or a benefit supplement provides for a reduction in the amount of such benefits according to the net annual income of the recipient and the members of his family, the said Articles 77 and 78 authorize such a reduction where the recipient resides in a Member State other than the Member State responsible for payment. In order to determine in such a case the net annual income of the recipient and the members of his family and to calculate the amount of benefits or the benefit supplement to which the recipient is entitled, the competent institution of the Member State responsible for payment must apply the relevant provisions of the legislation of that State as if the recipient and the members of his family residing in the same State as him resided in the Member State responsible for payment and received in that State the income which they receive in the Member State of residence, and, to this end, the competent institution is to rely on the information and supporting evidence provided at its request by the recipient and by the competent authorities of the Member State of residence.

However, the competent institution of the Member State responsible for payment may not request the person concerned to provide information and supporting evidence other than could be provided by a reasonably diligent person residing in the same Member State; nor, where the person concerned does not provide the information or supporting evidence requested, may it impose a penalty on him which differs from that imposed on the recipients of the same benefits residing in the territory of the Member State responsible for payment who fail to provide the same or equivalent information or supporting evidence.

5. It is for the Administrative Commission on Social Security for Migrant Workers, pursuant to Article 81(a) of Regulation No 1408/71, to draw up the list of institutions in the Member States which are responsible for providing the competent institution in the Member State responsible for payment of a benefit supplement under Articles 77 or 78 of that regulation with the official information necessary for calculating that supplement referred to in Decision No 129 of the Administrative Commission. The competent institution of the Member State from which a benefit supplement is claimed may, however, still apply to the Commission and to the authorities of the Member State in which the claimant resides in order to ascertain the name of the institution in the latter Member State which is competent to provide the official information referred to in Decision No 129.