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Council Regulation (EEC) No 1390/81 of 12 May 1981 extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community

Type Regulation
Publication 1981-05-29
State In force
Text As published
Department Council of the European Union
Source EUR-Lex
articles 4

This is the act as published. Later amendments are not folded into the text below: each one is a separate act in this repository and an entry in this law's history.

Reform history JSON API
29.5.1981 EN Official Journal of the European Communities L 143/1

COUNCIL REGULATION (EEC) No 1390/81

of 12 May 1981

extending to self-employed persons and members of their families Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community

THE COUNCIL OF THE EUROPEAN COMMUNITIES,

Having regard to the Treaty establishing the European Economic Community, and in particular Articles 2, 7, 51 and 235 thereof,

Having regard to the proposal from the Commission drawn up after consultation of the Administrative Commission on Social Security for Migrant Workers(1),

Having regard to the opinion of the European Parliament(2),

Having regard to the opinion of the Economic and Social Committee(3),

Whereas, in order to attain freedom of movement for employed persons and eliminate the obstacles that would, in the sphere of social security, result from the application of national legislations only, the Council adopted, on the basis of Article 51 of the Treaty, Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving within the Community(4), as last amended by Regulation (EEC) No 196/81(5) fixing the rules for coordinating social security schemes for employed persons;

Whereas freedom of movement for persons, which is one of the cornerstones of the Community, is not confined to employed persons but also extends to self-employed persons in the framework of the freedom of establishment and the freedom to supply services;

Whereas the coordination of the social security schemes applicable to self-employed persons is necessary to attain one of the objectives of the Community; whereas the Treaty has not provided the necessary specific powers for this purpose;

Whereas, in pursuance of the Treaty, any discrimination on grounds of nationality with regard to establishment and the provision of services has been prohibited since the end of the transitional period;

Whereas, in the sphere of social security, the application of national legislations only would not afford sufficient protection to self-employed persons moving within the Community; whereas, in order to make the freedom of establishment and the freedom to provide services fully effective, the social security schemes for self-employed persons should be coordinated;

Whereas Regulation (EEC) No 1408/71, even though it applies to employed persons, already covers certain categories of self-employed persons; whereas, for reasons of equity, it would be appropriate to apply, to the largest possible extent, the same rules to self-employed persons as are laid down for employed persons;

Whereas there are grounds for making the necessary adaptations to Regulation (EEC) No 1408/71 to make it possible to apply the provisions of that Regulation to self-employed persons and their families moving within the Community to the largest possible extent that is compatible with the nature of their occupation and the characteristics of the special social security schemes that cover them;

Whereas the adjustments to be made to Regulation (EEC) No 1408/71 call for adjustments to certain of the Annexes to that Regulation;

Whereas, in particular, it is necessary to stipulate in an Annex, what the terms ‘employed person’ and ‘self-employed person’, introduced in Regulation (EEC) No 1408/71, mean when the person concerned is insured under a social security scheme which applies to all residents or to certain categories of resident or to the entire working population of a Member State; whereas it seems preferable to define these expressions and the expression ‘member of the family’ in a separate Annex; whereas two further Annexes are needed, to indicate the special arrangements for self-employed persons excluded from the scope of the Regulation and for instances in which a person is subject simultaneously to the legislation of two Member States,

HAS ADOPTED THIS REGULATION:

Article 1

Regulation (EEC) No 1408/71 shall be amended as follows:

‘COUNCIL REGULATION (EEC) No 1408/71

of 14 June 1971

on the application of social security schemes to employed persons, to self-employed persons and to their families moving within the Community’.

  • ‘(a) “employed person” and “self-employed person” mean respectively:
  • (i) 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 or self-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:
  • — can be identified as an employed or self-employed person by virtue of the manner in which such scheme is administered or financed, or,
  • — failing such criteria, is insured for some other contingency specified in Annex I under a scheme for employed or self-employed persons, or under a scheme referred to in (iii), either compulsorily or on an optional continued basis, or, where no such scheme exists in the Member State concerned, complies with the definition given in Annex I;
  • (iii) any person who is compulsorily insured for several of the contingencies covered by the branches dealt with in this Regulation, under a standard social security scheme for the whole rural population in accordance with the criteria laid down in Annex I;
  • (iv) 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 or self-employed persons or for all residents or for certain categories of residents:
  • — if such person carries out an activity as an employed or self-employed person, or
  • — if such person has previously been compulsorily insured for the same contingency under a scheme for employed or self-employed persons of the same Member State;
  • (b) “frontier worker” means any employed or self-employed person who pursues his occupation in the territory of a Member State and resides 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, or who engages in the provision of services elsewhere in the territory of the same or another Member State, shall retain the status of frontier worker for a period not exceeding four months, even if he is prevented, during that period, from returning daily or at least once a week to the place where he resides;’
  • ‘(f) “member of the family” means any person defined or recognized 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 31, 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 employed or self-employed person, this condition shall be considered satisfied if the person in question is mainly dependent on that person. Where a Member State's legislation on sickness or maternity benefits in kind does not enable members of the family to be distinguished from the other persons to whom it applies, the term “member of the family” shall have the meaning given to it in Annex I;’

‘The term “legislation” also excludes provisions governing special schemes for self-employed persons the creation of which is left to the initiatives of those concerned or which apply only to a part of the territory of the Member State concerned, irrespective of whether or not the authorities decided to make them compulsory or extend their scope. The special schemes in question are specified in Annex II;’

  • ‘(s) “periods of employment” and “periods of self-employment” mean periods so defined or recognized by the legislation under which they were completed, and all periods treated as such, where they are regarded by the said legislation as equivalent to periods of employment or of self-employment;’

‘1.   The provisions of the legislation of any Member State which make admission to voluntary or optional continued insurance conditional upon residence in the territory of that State shall not apply to persons resident in the territory of another Member State, provided that at some time in their past working life they were subject to the legislation of the first State as employed or as self-employed persons.’

‘ Article 13

General rules

  1. Subject to Article 14 (c), persons to whom this Regulation applies shall be subject to the legislation of a single Member State only. That legislation shall be determined in accordance with the provisions of this Title.
  1. Subject to Articles 14 to 17:
  • (a) a person employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State or if the registered office or place of business of the undertaking or individual employing him is situated in the territory of another Member State;
  • (b) a person who is self-employed in the territory of one Member State shall be subject to the legislation of that State even if he resides in the territory of another Member State;
  • (c) a person employed on board a vessel flying the flag of a Member State shall be subject to the legislation of that State;
  • (d) civil servants and persons treated as such shall be subject to the legislation of the Member State to which the administration employing them is subject;
  • (e) a person called up or recalled for service in the armed forces, or for civilian service, of a Member State shall be subject to the legislation of that State. If entitlement under that legislation is subject to the completion of periods of insurance before entry into or after release from such military or civilian service, periods of insurance completed under the legislation of any other Member State shall be taken into account, to the extent necessary, as if they were periods of insurance completed under the legislation of the first State. The employed or self-employed person called up or recalled for service in the armed forces or for civilian service shall retain the status of employed or self-employed person.

Article 14

Special rules applicable to persons, other than mariners, engaged in paid employment

Article 13 (2) (a) shall apply subject to the following exceptions and circumstances:

      • (a) A person employed in the territory of a Member State by an undertaking to which he is normally attached who is posted by that undertaking to the territory of another Member State to perform work there for that undertaking shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of that work does not exceed 12 months and that he is not sent to replace another person who has completed his term of posting;
  • (b) if the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned is posted or the body designated by that authority gives its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months.
    1. A person normally employed in the territory of two or more Member States shall be subject to the legislation determined as follows:
  • (a) a person who is a member of the travelling or flying personnel of an undertaking which, for hire or reward or on its own account, operates international transport services for passengers or goods by rail, road, air or inland waterway and has its registered office or place of business in the territory of a Member State, shall be subject to the legislation of the latter State, with the following restrictions:
  • (i) where the said undertaking has a branch or permanent representation in the territory of a Member State other than that in which it has its registered office or place of business, a person employed by such branch or permanent representation shall be subject to the legislation of the Member State in whose territory such branch or permanent representation is situated;
  • (ii) where a person is employed principally in the territory of the Member State in which he resides, he shall be subject to the legislation of that State, even if the undertaking which employs him has no registered office or place of business or branch or permanent representation in that territory;
  • (b) a person other than that referred to in (a) shall be subject:
  • (i) to the legislation of the Member State in whose territory he resides, if he pursues his activity partly in that territory or if he is attached to several undertakings or several employers who have their registered offices or places of business in the territory of different Member States;
  • (ii) to the legislation of the Member State in whose territory is situated the registered office or place of business of the undertaking or individual employing him, if he does not reside in the territory of any of the Member States where he is pursuing his activity.
    1. A person who is employed in the territory of one Member State by an undertaking which has its registered office or place of business in the territory of another Member State and which straddles the common frontier of these States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office or place of business.

Article 14a

Special rules applicable to persons, other than mariners, who are self-employed

Article 13 (2) (b) shall apply subject to the following exceptions and circumstances:

      • (a) A person normally self-employed in the territory of a Member State and who performs work in the territory of another Member State shall continue to be subject to the legislation of the first Member State, provided that the anticipated duration of the work does not exceed 12 months;
  • (b) if the duration of the work to be done extends beyond the duration originally anticipated, owing to unforeseeable circumstances, and exceeds 12 months, the legislation of the first Member State shall continue to apply until the completion of such work, provided that the competent authority of the Member State in whose territory the person concerned has entered to perform the work in question or the body appointed by that authority gives its consent; such consent must be requested before the end of the initial 12-month period. Such consent cannot, however, be given for a period exceeding 12 months.
    1. A person normally self-employed in the territory of two or more Member States shall be subject to the legislation of the Member State in whose territory he resides if he pursues any part of his activity in the territory of that Member State. If he does not pursue any activity in the territory of the Member State in which he resides, he shall be subject to the legislation of the Member State in whose territory he pursues his main activity. The criteria used to determine the principal activity are laid down in the Regulation referred to in Article 97.
    1. A person who is self-employed in an undertaking which has its registered office or place of business in the territory of one Member State and which straddles the common frontier of two Member States shall be subject to the legislation of the Member State in whose territory the undertaking has its registered office or place of business.
    1. If the legislation to which a person should be subject in accordance with paragraphs 2 or 3 does not enable that person, even on a voluntary basis, to join a pension scheme, the person concerned shall be subject to the legislation of the other Member State which would apply apart from these particular provisions or, should the legislations of two or more Member States apply in this way, he shall be subject to the legislation decided on by common agreement amongst the Member States concerned or their competent authorities.

Article 14b

Special rules applicable to mariners

Article 13 (2) (c) shall apply subject to the following exceptions and circumstances:

    1. A person employed by an undertaking to which he is normally attached, either in the territory of a Member State or on board a vessel flying the flag of a Member State, who is posted by that undertaking on board a vessel flying the flag of another Member State to perform work there for that undertaking shall, subject to the conditions provided in Article 14 (1), continue to be subject to the legislation of the first Member State.
    1. A person normally self-employed, either in the territory of a Member State or on board a vessel flying the flag of a Member State and who performs work on his own account on board a vessel flying the flag of another Member State shall, subject to the conditions provided in Article 14a (1), continue to be subject to the legislation of the first Member State.
    1. A person who, while not being normally employed at sea, performs work in the territorial waters or in a port of a Member State on a vessel flying the flag of another Member State within those territorial waters or in that port, but is not a member of the crew of the vessel, shall be subject to the legislation of the first Member State.
    1. A person employed on board a vessel flying the flag of a Member State and remunerated for such employment by an undertaking or a person whose registered office or place of business is in the territory of another Member State shall be subject to the legislation of the latter State if he is resident in the territory of that State; the undertaking or person paying the remuneration shall be considered as the employer for the purposes of the said legislation.

Article 14c

Special rules applicable to persons employed simultaneously in the territory of one Member State and self-employed in the territory of another Member State

    1. A person who is employed simultaneously in the territory of one Member State and self-employed in the territory of another Member State shall be subject:
  • (a) to the legislation of the Member State in the territory of which he is engaged in paid employment, subject to subparagraph (b);
  • (b) in the instances referred to in Annex VII, to the legislation of each of these Member States, as regards the activity pursued in its territory.
    1. The detailed rules for implementing subparagraph (b) of paragraph 1 shall be laid down in a Regulation to be adopted by the Council on a proposal from the Commission.

Article 14d

Miscellaneous provisions

    1. The person referred to in Article 14 (2) and (3), Article 14a (2), (3) and (4) and Article 14c (1) (a) shall be treated, for the purposes of application of the legislation laid down in accordance with these provisions, as if he pursued all his professional activity or activities in the territory of the Member State concerned.
    1. The provisions of the legislation of a Member State under which a pensioner who is pursuing a professional or trade activity is not subject to compulsory insurance in respect of such activity shall also apply to a pensioner whose pension was acquired under the legislation of another Member State, unless the person concerned expressly asks to be so subject by applying to the institution designated by the competent authority of the first Member State and named in Annex 10 to the Regulation referred to in Article 97.’

‘1.   Articles 13 to 14d shall not apply to voluntary insurance or to optional continued insurance unless, in respect of one of the branches referred to in Article 4, there exists in any Member State only a voluntary scheme of insurance.’

‘ Article 17

Exceptions to Articles 13 to 16

Two or more Member States, the competent authorities of those States or the bodies designated by those authorities may, by common agreement, provide for exceptions to the provisions of Articles 13 to 16 in the interests of certain categories of employed or self-employed persons, or of certain such persons.’

‘1.   The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on average earnings, shall determine such average earnings exclusively by reference to earnings confirmed as having been paid during the periods completed under the said legislation.

  1. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings, shall take account exclusively of the standard earnings or, where appropriate, of the average of standard earnings for the periods completed under the said legislation.’

‘ Article 34

General provisions

  1. For the purposes of Articles 28, 28a, 29 and 31, a pensioner who is in receipt of two or more pensions due under the legislation of a single Member State shall be regarded as a pensioner entitled to draw a pension under the legislation of one Member State, within the meaning of these provisions.
  1. Articles 27 to 33 shall not apply to a pensioner or to members of his family who are entitled to benefits under the legislation of a Member State as a result of pursuing a professional or trade activity. In such a case, the person concerned shall, for the purposes of the implementation of this Chapter, be considered as an employed or self-employed person or as a member of an employed or self-employed person's family.’

‘1.   Subject to paragraph 2, where the legislation of the country of stay or residence contains several sickness or maternity insurance shemes, the provisions applicable under Articles 19, 21 (1), 22, 25, 26, 28 (1), 29 (1) or 31 shall be those of the scheme covering manual workers in the steel industry. Where, however, the said legislation includes a special scheme for workers in mines and similar undertakings, the provisions of such scheme shall apply to that category of workers and members of their families provided the institution of the place of stay or residence to which application is made is competent to administer such scheme.

  1. Where the legislation of the country of stay or residence includes one or more special schemes, covering all or most occupational categories of self-employed persons, which grant benefits in kind less favourable than those granted to employed persons, the provisions applicable to the person concerned and to the members of his family pursuant to Article 19 (1) (a) and (2), Article 22 (1) under (i) and (3), Article 28 (1) (a) and Article 31 (a) shall be those of the scheme or schemes determined by the implementing Regulation referred to in Article 97:
  • (a) where, in the competent State, the person concerned is insured under a special scheme for self-employed persons which also grants less favourable benefits in kind than those granted to employed persons, or
  • (b) where a person in receipt of one or more pensions is, under the pensions legislation of the competent Member State or Member States, entitled only to the benefits in kind provided for by a special scheme for self-employed persons which also grants less-favourable benefits in kind than those granted to employed persons.’;

‘2.   Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation which is subject to a special scheme for employed persons or, where appropriate, in a specific employment, periods of insurance completed under the legislations of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing this, in the same occupation or, where appropriate, in the same employment. If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits, under the general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate.’;

‘3.   Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation subject to a special scheme for self-employed persons, periods of insurance completed under the legislations of other Member States shall be taken into account for the granting of these benefits only if completed under a corresponding scheme or, failing this, in the same occupation.

If, account having been taken of the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, these periods shall be taken into account for the granting of the benefits under the general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate, in so far as they have been completed under a scheme other than the abovementioned corresponding scheme and provided that the person concerned has also been insured under this general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate.’

‘3.   A person who is not entitled to benefits under paragraph 1 shall receive the benefits to which he is still entitled under the legislation of another Member State, taking account, where appropriate, of the provisions of Article 38.’

‘3.   Where the legislation of a Member State makes the granting of certain benefits conditional upon the periods of insurance having been completed only in an occupation subject to a special scheme for self-employed persons, periods completed under the legislations of other Member States shall be taken into account for the granting of such benefits only if completed under a corresponding scheme or, failing this, in the same occupation.

If, taking into account the periods thus completed, the person concerned does not satisfy the conditions for receipt of these benefits, those periods shall be taken into account for the granting of the benefits under the general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate, in so far as they have been completed under a scheme other than the abovementioned corresponding scheme and provided that the person concerned has also been insured under this general scheme or, failing this, under the scheme applicable to manual or clerical workers, as appropriate.’;

‘4.   Where the legislation of a Member State which makes the granting of benefits conditional upon an employed person being subject to its legislation at the time when the risk materializes has no requirements as to the length of insurance periods either for entitlement to or calculation of benefits, any employed person who is no longer subject to that legislation shall for the purposes of this Chapter, be deemed to be still so subject at the time when the risk materializes, if at that time he is subject to the legislation of another Member State or, failing this, can establish a claim to benefits under the legislation of another Member State However, this latter condition shall be deemed to be satisfied in the case referred to in Article 48 (1).’;

‘5.   Paragraph 4 shall apply to self-employed persons in order to determine whether the conditions for entitlement to survivors' benefits have been satisfied.

  1. Where the legislation of a Member State which makes granting of invalidity benefits conditional upon the person concerned being subject to that legislation at the time when the risk materializes has no requirements as to the length of insurance periods either for the entitlement to or the calculation of benefits, any self-employed person who is no longer subject to that legislation shall, for the purposes of this Chapter, be deemed to be still so subject at the time when the risk materializes, if at that time he is subject to the legislation of another Member State.’

‘1.   For the calculation of the theoretical amount referred to in Article 46 (2) (a), the following rules shall apply:

  • (a) where, under the legislation of a Member State, benefits are calculated on the basis of average earnings, an average contribution, an average increase or on the ratio which existed, during the periods of insurance, between the claimant's gross earnings and the average gross earnings of all insured persons other than apprentices, such average figures or ratios shall be determined by the competent institution of that State solely on the basis of the periods of insurance completed under the legislation of the said State, or the gross earnings received by the person concerned during those periods only;
  • (b) where, under the legislation of a Member State, benefits are calculated on the basis of the amount of earnings, contributions or increases, the competent institution of that State shall determine the earnings, contributions and increases to be taken into account in respect of the periods of insurance or residence completed under the legislation of other Member States on the basis of the average earnings, contributions or increases recorded in respect of the periods of insurance completed under the legislation which it administers;
  • (c) where, under the legislation of a Member State, benefits are calculated on the basis of standard earnings or a fixed amount, the competent institution of that State shall consider the standard earnings or the fixed amount to be taken into account by it in respect of periods of insurance or residence completed under the legislations of other Member States as being equal to the standard earnings or fixed amount or, where appropriate, to the average of the standard earnings or the fixed amount corresponding to the periods of insurance completed under its own legislation;
  • (d) where, under the legislation of a Member State, benefits are calculated for some periods on the basis of the amount of earnings, and, for other periods, on the basis of standard earnings or a fixed amount, the competent institution of that State shall, in respect of periods of insurance or residence completed under the legislations of other Member States, take into account the earnings or fixed amounts determined in accordance with the provisions of (b) or (c) above or, as appropritae, the average of these earnings or fixed amounts; where benefits are calculated on the basis of standard earnings or a fixed amount for all the periods completed under the legislation which it administers, the competent institution shall consider the earnings to be taken into account in respect of the periods of insurance or residence completed under the legislations of other Member States as being equal to the notional earnings corresponding to the standard earnings or fixed amount.’

‘1.   The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on average earnings shall determine such average earnings exclusively by reference to earnings confirmed as having been paid during the periods completed under the said legislation.

  1. The competent institution of a Member State whose legislation provides that the calculation of cash benefits shall be based on standard earnings shall take account exclusively of the standard earnings or, where appropriate, of the average of standard earnings for the periods completed under the said legislation.’

‘1.   In the event of aggravation of an occupational disease for which an employed or self-employed person has received or is receiving benefit under the legislation of a Member State, the following rules shall apply:

  • (a) if the person concerned has not, while in receipt of benefits, been engaged in an occupation under the legislation of another Member State likely to cause or aggravate the disease in question, the competent institution of the first Member State shall be bound to meet the cost of the benefits under the provisions of the legislation which it administers taking into account the aggravation;
  • (b) if the person concerned, while in receipt of benefits, has pursued such an activity under the legislation of another Member State, the competent institution of the first Member State shall be bound to meet the cost of the benefits under the legislation which it administers without taking into account the aggravation. The competent institution of the second Member State shall grant a supplement to the person concerned, the amount of which shall be equal to the difference between the amount of benefits due after the aggravation and the amount which would have been due prior to the aggravation under the legislation which it administers if the disease in question had occurred under the legislation of that Member State;
  • (c) if, in the case covered by subparagraph (b), an employed or self-employed person suffering from sclerogenic pneumoconiosis or from a disease determined under Article 57 (4) is not entitled to benefits under the legislation of the second Member State, the competent institution of the first Member State shall be bound to provide benefits under the legislation which it administers, taking into account the aggravation. The competent institution of the second Member State shall, however, meet the cost of the difference between the amount of cash benefits, including pensions, due from the competent institution of the first Member State, taking into account the aggravation, and the amount of the corresponding benefits which were due prior to the aggravation.’

‘FAMILY BENEFITS AND FAMILY ALLOWANCES’;

‘Provision common to benefits for employed, self-employed and unemployed persons’;

‘Employed persons’;

‘3.   However, an employed person who is subject to French legislation by virtue of Article 14 (1) shall be entitled to the family benefits set out in Annex VI in respect of members of his family who accompany him to the territory of the Member State where he is working.’

‘ANNEX I

PERSONS COVERED BY THE REGULATION

I. Employed persons and/or self-employed persons

(Article 1 (a) (ii) and (iii) of the Regulation)

A. BELGIUM

Does not apply.

B. DENMARK
1. Any person who, from the fact of pursuing an activity as an employed person, is subject to legislation on accidents at work and occupational diseases, shall be considered an employed person within the meaning of Article 1 (a) (ii) of the Regulation.
2. Any person who, pursuant to the law on daily cash benefits in the event of sickness or maternity, is entitled to such benefits on the basis of an earned income other than a wage or salary shall be considered a self-employed person within the meaning of Article 1 (a) (ii) of the Regulation.

C. GERMANY

If the competent institution for granting family benefits in accordance with Title III, Chapter 7, of the Regulation is a German institution, then within the meaning of Article 1 (a) (ii) of the Regulation:

  • (a) “employed person” means any person compulsorily insured against unemployment or any person who, as a result of such insurance, obtains cash benefits under sickness insurance or comparable benefits;
  • (b) “self-employed person” means any person pursuing a self-employed activity who is bound:

— to join, or pay contributions in respect of, an old-age insurance within a scheme for self-employed persons, or

— to join a scheme within the framework of compulsory pension insurance.

D. FRANCE

Does not apply.

E. GREECE
1. Persons insured under the OGA scheme who pursue exclusively activities as employed persons or who are or have been subject to the legislation of another Member State and who consequently are or have been “workers” within the meaning of Article 1 (a) of the Regulation are considered as workers within the meaning of Article 1 (a) (iii) of the Regulation.
2. For the purposes of granting the national family allowances, persons referred to in Article 1 (a) (i) and (iii) of the Regulation are considered as workers within the meaning of Article 1 (a) (ii) of the Regulation.

F. IRELAND
1. Any person who is compulsorily or voluntarily insured pursuant to the provisions of Sections 5 and 37 of the Social Welfare (Consolidation) Act 1981 shall be considered an employed person within the meaning of Article 1 (a) (ii) of the Regulation.
2. Any person who is pursuing a professional or trade activity without a contract of employment or who has retired from such activity shall be considered a self-employed person within the meaning of Article 1 (a) (ii) of the Regulation. As regards sickness benefits in kind, the person concerned must also be entitled to such benefits under Section 45 or Section 46 of the Health Act 1970.

G. ITALY

Does not apply.

H. LUXEMBOURG

Does not apply.

I. NETHERLANDS

Any person pursuing an activity or occupation without a contract of employment shall be considered a self-employed person within the meaning of Article 1 (a) (ii) of the Regulation.

J. UNITED KINGDOM

Any person who is an “employed earner” or a “self-employed earner” within the meaning of the legislation of Great Britain or of the legislation of Northern Ireland shall be regarded respectively as an employed person or a self-employed person within the meaning of Article 1 (a) (ii) of the Regulation. Any person in respect of whom contributions are payable as an “employed person” or a “self-employed person” in accordance with the legislation of Gibraltar shall be regarded respectively as an employed person or a self-employed person within the meaning of Article 1 (a) (ii) of the Regulation.

II.   Members of the family

(Article 1 (f), second sentence, of the Regulation)

A. BELGIUM

Does not apply.

B. DENMARK

For the purpose of determining entitlement to benefits in kind pursuant to Article 22 (1) (a) and Article 31 of the Regulation, “member of the family” means any person regarded as a member of the family under the Law on the Public Health Serivce.

C. GERMANY

Does not apply.

D. FRANCE

Does not apply.

E. GREECE

Does not apply.

F. IRELAND

For the purpose of determining entitlement to benefits in kind pursuant to Article 22 (1) (a) and Article 31 of the Regulation, “member of the family” means any person regarded as a dependent of the employed or self-employed person for the purposes of the Health Acts 1947 to 1970.

G. ITALY

Does not apply.

H. LUXEMBOURG

Does not apply.

I. NETHERLANDS

Does not apply.

J. UNITED KINGDOM

For the purpose of determining entitlement to benefits in kind pursuant to Articles 22 (1) (a) and 31 of the Regulation, the expression ‘member of the family’ shall mean:

  • (a) as regards the legislation of either Great Britain or Northern Ireland, any person regarded as a dependant within the meaning of the Social Security Act 1975 or, as the case may be, the Social Security (Northern Ireland) Act 1975, and
  • (b) as regards the legislation of Gibraltar, any person regarded as a dependant within the meaning of the Group Practice Medical Scheme Ordinance 1973.’

‘ANNEX II

(Article 1 (u) of the Regulation)

I. Special childbirth allowances excluded from the scope of the Regulation in pursuance of Article 1 (u)’;

‘II.   Special schemes for self-employed persons excluded from the scope of the Regulation pursuant to Article 1 (j), second subparagraph

A. BELGIUM

Does not apply.

B. DENMARK

Does not apply.

C. GERMANY

Insurance and welfare institutions (Versicherungs- und Versorgungswerke) for doctors, dentists, veterinary surgeons, dispensing chemists, barristers and counsel, patent agents (Patentanwälte), notaries public, auditors (Wirtschaftprüfer), tax consultants and advisers (Steuerbevollmächtigte), sea pilots (Seelotsen) and architects, set up pursuant to legislation of the Länder, and other insurance and welfare institutions, in particular welfare funds (Fürsorgeeinrichtungen) and the system for extended fee-sharing (erweiterte Honorarverteilung).

D. FRANCE
1. Self-employed persons outside the agricultural sphere: (a) The supplementary old-age insurance schemes and the invalidity and death insurance schemes for self-employed persons, such as are mentioned in Articles L 658, L 659, L 663-11, L 663-12, L 682 and L 683-1 of the Social Security Code. (b) The additional benefits referred to in Article 9 of Law No 66·509 of 12 July 1966.
2. Self-employed persons in agriculture: The types of insurance set out in Articles 1049 and 1234.19 of the Rural Code, concerning, on the one hand, sickness, maternity and old-age and, on the other, accidents at work and occupational diseases of self-employed persons in agriculture.

E. GREECE

Does not apply.

F. IRELAND

Does not apply.

G. ITALY

Does not apply.

H. LUXEMBOURG

Does not apply.

I. NETHERLANDS

Does not apply.

J. UNITED KINGDOM

Does not apply.’

  • ‘(b) Exchange of letters of 10 and 12 July 1968 concerning self-employed persons.’
  • ‘A. BELGIUM

The legislation relating to the general invalidity scheme, to the special invalidity scheme for miners and to the special scheme for sailors in the Merchant Navy and the legislation concerning insurance against incapacity for work for self-employed persons.’

  • ‘D. FRANCE
    1. Employed persons

All legislation on invalidity insurance, except for the legislation concerning the invalidity insurance of the social security scheme for miners.

    1. Self-employed persons

The legislation on invalidity insurance for self-employed workers.’

‘ANNEX VI

(Article 89 of the Regulation)

Special procedures for applying the legislations of certain Member States

A. BELGIUM
1. Persons whose entitlement to sickness insurance benefits in kind derives from the provisions of the Belgian compulsory sickness and invalidity scheme applicable to self-employed persons shall be eligible under the provisions of Title III, Chapter 1, of the Regulation, including Article 35 (1) under the following conditions: (a) in the event that they are temporarily resident in the territory of a Member State other than Belgium, the persons concerned shall be entitled: (i) to the benefits in kind provided for under the legislation of the Member State of temporary residence in respect of hospitalization care; (ii) to reimbursement in respect of other benefits in kind provided for under the Belgian scheme by the relevant Belgian institution at the rate provided for under the legislation of the State of temporary residence; (b) in the event that they are permanently resident in the territory of a Member State other than Belgium, the persons concerned shall be entitled to the benefits in kind provided for under the legislation of the Member State of permanent residence provided that they pay the relevant Belgian institution the appropriate additional contribution provided for under Belgian regulations.
2. For the application of the provisions of Chapters 7 and 8 of Title III of the Regulation by the competent Belgian institution, a child shall be considered to have been brought up in the Member State in whose territory he resides.
3. For the purposes of Article 46 (2) of the Regulation, periods of old-age insurance completed under Belgian legislation before 1 January 1945 shall also be considered as periods of insurance completed under the Belgian legislation on the general invalidity scheme and the mariners' scheme.
4. In applying Article 40 (3) (a) (ii), account shall only be taken of periods during which the employed or self-employed person was incapable of work within the meaning of Belgian legislation.
5. For the purposes of Article 46 (2) of the Regulation, periods of old-age insurance completed by self-employed persons under Belgian legislation, prior to the entry into force of the legislation on the incapacity for work of self-employed persons, shall be considered as periods completed under the latter legislation.
6. In order to establish whether the requirements imposed by Belgian legislation for entitlement to unemployment benefits are fulfilled, account shall be taken of days accepted as equivalent within the meaning of the said legislation only in so far as the days worked which preceded them were days of paid employment.

B. DENMARK
1. Completed periods of insurance, employment or self-employment in a Member State other than Denmark shall be taken into account for admission to membership of an approved unemployment insurance fund in the same way as if they were periods of employment or self-employment completed in Denmark.
2. Employed persons, self-employed persons, applicants for pensions and pensioners with members of their family referred to in Articles 19, 22 (1) and (3), 25 (1) and (3), 26 (1), 28a, 29 and 31 of the Regulation, resident or staying in Denmark shall be entitled to benefits in kind on the same terms as those laid down by Danish legislation for persons whose income does not exceed the level indicated in Article 3 of Law No 311 of 9 June 1971 concerning the Public Health Service, where the cost of the said benefits shall be borne by the institution of a Member State other than Denmark.
3. The provisions of Article 1 (1), No 2, of the Law on old-age pensions, Article 1 (1), No 2, of the Law on invalidity pensions and Article 2 (1), No 2, of the Law on widows' pensions and allowances are not applicable to employed or self-employed persons or their survivors whose residence is in the territory of a Member State other than Denmark.
4. The provisions of the Danish legislation governing old-age and widows' pensions are applicable to the widow of an employed or self-employed person subject to the Danish legislation, even if she has not resided in Denmark.
5. The terms of the Regulation shall be without prejudice to the provisional rules under the Danish Laws of 7 June 1972 on the pension rights of Danish nationals having their effective residence in Denmark for a specified period immediately preceding the date of the application. However, a pension shall be granted under those conditions laid down for Danish nationals to nationals of other Member States having their effective residence in Denmark during the year immediately preceeding the date of application.
6. (a) The periods during which a frontier worker residing within the territory of a Member State other than Denmark has pursued his professional or trade activity in Denmark are to be considered as periods of residence for the purposes of Danish legislation. The same shall apply to periods in which a frontier worker is posted to or provides services in a Member State other than Denmark. (b) The periods during which a seasonal worker residing within the territory of a Member State other than Denmark has pursued his occupation in Denmark are to be considered as periods of residence for the purposes of Danish legislation. The same applies to periods during which a seasonal worker is posted to the territory of a Member State other than Denmark.
7. In order to determine whether the conditions of a right to maternity benefits laid down in Chapter 12 of the Law on the daily cash benefits for sickness or maternity are satisfied in the case where the person concerned was not subject to the Danish legislation throughout the whole period referred to in Article 34 (1) or (2) of the aforementioned Law: (a) account shall be taken of the periods of insurance completed, as appropriate, under the legislation of a Member State other than Denmark, during the course of the said period of reference during which the person concerned was not subject to the Danish legislation, as if those periods completed were under the latter legislation; and (b) the person concerned shall be deemed to have received during the periods taken into account an average salary equal to that of the average salary confirmed as having been paid during the periods completed under the Danish legislation for the said period of reference,
8. For the purpose of applying Article 12 (2) of the Regulation to Danish legislation, invalidity, old-age and widows' pensions shall be regarded as benefits of the same kind.
9. For the purpose of applying Article 67 of the Regulation, unemployment benefits for self-employed persons insured in Denmark shall be calculated in accordance with Danish legislation.

C. GERMANY
1. (a) Where no provision is already made under German legislation for accident insurance, German institutions shall also provide compensation, in accordance with that legislation, for accidents at work (and occupational diseases) which occurred in Alsace-Lorraine before 1 January 1919, the responsibility for the cost of which has not been assumed by French institutions in pursuance of the Decision of the Council of the League of Nations of 21 June 1921 (Reichsgesetzblatt, p. 1289), where the person concerned or his survivors are residing in a Member State; (b) the provisions of Article 10 of the Regulation shall not affect the provisions under which accidents (and occupational diseases) occurring outside the territory of the Federal Republic of Germany, and periods completed outside that territory, do not give rise to payment of benefits, or only give rise to payment of benefits under certain conditions, when those entitled to them reside outside the territory of the Federal Republic of Germany.
2. (a) In order to determine whether periods considered by German legislation as interrupted periods (Ausfallzeiten) or supplementary periods (Zurechnungszeiten) should be taken into account as such, compulsory contributions paid under the legislation of another Member State and insurance under the insurance scheme of another Member State shall be treated as compulsory contributions paid under German legislation and as insurance under the German pension insurance scheme. This provision shall not apply to old-age insurance for farmers of the Federal Republic of Germany or to corresponding special schemes in the other Member States. When calculating the number of calendar months which have elapsed between the date of entry into the insurance scheme and the materialization of the risk, periods taken into consideration under the legislation of another Member State which fall between those two dates shall not be taken into account, neither shall periods during which the person concerned has been in receipt of a pension; (b) the provisions of subparagraph (a) shall not apply to the standard interrupted period (pauschale Ausfallzeit). This shall be determined exclusively on the basis of insurance periods completed in Germany; (c) the taking into account of a supplementary period (Zurechnungszeit) in pursuance of German legislation on pension insurance for miners shall, moreover, be subject to the condition that the last contribution paid under German legislation was paid into the pension insurance for miners; (d) for the purpose of taking into account German substitute periods (Ersatzzeiten), only German national legislation shall apply; (e) by way of derogation from the provision laid down in subparagraph (d), the following provision shall apply to persons insured under the German pension insurance scheme who were residing in German territories under Netherlands administration during the period 1 January 1948 to 31 July 1963 for the purpose of taking into account German substitute periods (Ersatzzeiten) within the meaning of Article 1251 (2) of the German social security law (RVO) or corresponding provisions, payment of contributions to Netherlands insurance schemes during that period shall be treated as equivalent to having been employed or having pursued an activity coming under compulsory insurance within the meaning of German legislation.
3. Where payments to be made into German sickness insurance funds are concerned, compulsory payment of the contributions referred to in Article 26 (2) of the Regulation shall be suspended until a decision is made concerning pension claims.
4. In order to determine whether a child is receiving an orphan's pension, receipt of one of the benefits referred to in Article 78 or of another family benefit granted under French legislation for a minor residing in France shall be treated as the receipt of an orphan's pension under German legislation.
5. If application of this Regulation or of subsequent social security Regulations involves exceptional expenses for certain sickness insurance institutions, such expenses may be partially or totally reimbursed. The National Federation of Local Sickness Funds, in its function as liaison body (sickness insurance) shall decide on such reimbursement by common agreement with the other Central Associations of Sickness Funds. The resources needed for effecting such reimbursements shall be provided by taxes imposed on all sickness insurance institutions in proportion to the average number of members during the preceding year, including retired persons.
6. For the purposes of the Regulation, the lump-sum payment for following a course of medical treatment on the occasion of confinement granted under German legislation to female insured persons and to members of the families of insured persons shall be considered as a benefit in kind.
7. Article 1233 of the insurance code (RVO) and Article 10 of the clerical staff insurance law (AVG), as amended by the pension reform law of 16 October 1972, which govern voluntary insurance under German pension insurance schemes, shall apply to nationals of the other Member States and to stateless persons and refugees residing in the territory of the other Member States, according to the following rules. Where the general conditions are fulfilled, voluntary contributions to the German pension insurance scheme may be paid: (a) if the person concerned has his domicile or residence in the territory of the Federal Republic of Germany; (b) if the person concerned has his domicile or residence in the territory of another Member State and at any time previously belonged compulsorily or voluntarily to a German pension insurance scheme; (c) if the person concerned is a national of another Member State, has his domicile or residence in the territory of a third State and has paid contributions for German pension insurance for at least 60 months, or was eligible for voluntary insurance under the transitional provisions previously in force and is not compulsorily or voluntarily insured under the legislation of another Member State.
8. The Regulation shall not affect Article 51a (2) of the manual workers pension reform law (ArVNG) or Article 49a (2) of the clerical staff pension reform law (AnVNG), as amended by the pension reform law of 16 October 1972. The persons who, under paragraph 8 (b) and (c), may join voluntary insurance, may pay contributions only in respect of periods for which they have not yet paid contributions under the legislation of another Member State.
9. Where the costs of benefits in kind which are granted by German institutions of the place of residence to pensioners or members of their family who are insured with competent institutions of other Member States must be refunded on the basis of monthly lump sums, such costs shall, for the purpose of financial equalization among German institutions of sickness insurance for pensioners, be treated as expenditure on the German sickness insurance scheme for pensioners. The lump sums refunded to the German institutions of the place of residence by the competent institutions of other Member States shall be regarded as receipts which must be taken into account in the aforementioned financial equalization.
10. In the case of self-employed persons, the award of unemployment assistance (Arbeitslosenhilfe) shall be conditional on the person concerned having, before reporting himself unemployed, worked for at least a year mainly as a self-employed person in the territory of the Federal Republic of Germany, and not having simply left that work temporarily.

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