Proposal for a Regulation of the European Parliament and of the Council amending Regulation (EC) N°883/2004 on the coordination of social security systems, and determining the content of Annex XI. - Relevant parts to Title III, chapter IV of the proposal laying down the procedure for implementing Regulation (EC) No 883/2004 on the coordination of social security systems (invalidity benefits and old-age and survivors' pensions).

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1. Tekst

At its meeting on 25-26 September 2006, the Social Questions Working Party held a new discussion

on the relevant parts to Title III, chapter IV, of the above-mentioned proposal, on the basis of

documents 5672/06 and 12829/1/06 REV 1.

In the light of the discussions, the Presidency undertook to suggest changes to the text of these

Articles as set out in the Annex. Any new text appears in bold, deletions are indicated by [....].

Delegations' scrutiny reservations appear in footnotes.

In parallel to these discussions, the Working Party also held a new discussion on Articles 43 to 53

of the Commission Proposal for a Regulation laying down the procedure for implementing Council

Regulation (EC) No 883/2004 on the coordination of social security systems. The outcome of these

discussions is set out in doc. 13167/06.

__________________

ANNEX

Article 1

Regulation (EC) No 883/2004 is hereby amended as follows:

1.

(pm. Title II, doc 7772/06).
2.

In Article 51(3), before the words "in accordance with the procedures provided for in Annex 1

XI", the words "where necessary" are inserted.

3.

In Article 52, paragraph 4 is replaced by the following: 2

"4. Where the calculation pursuant to subparagraph 1(a) in one Member State

invariably results in the independent benefit being equal to or higher than the pro

rata benefit, calculated in accordance with subparagraph 1(b), the competent

institution shall waive the pro rata calculation, under the condition that

i)

such situations are set out in Annex VIII part 1; and
ii)

no legislation containing rules against overlapping as referred to in Articles 54 and 55, is applicable in this specific case, unless the conditions laid down

in Article 55(2) are fulfilled; and

1 The Working Party discussed a note submitted by AT (DS 569/06), regarding the insertion of additional provisions in Article 51(3) of the basic Regulation as an alternative to several Member States' requests for entries in Annex XI, as well a suggested rewording of these provisions by ES. DE expressed agreement with the wording suggested by ES. NL and SE entered positive scrutiny reservations. FI and UK entered scrutiny reservations on both AT and ES suggestions. 2

New text suggested by the Presidency to reflect the discussion in the Working Party on the basis of AT's suggested amendments to the new proposed Article 52(4) of Regulation (EC) No 883/2004 and a new paragraph 5 (DS 644/06) as well as a Commission services' non paper. AT reserved its position as it stressed that its final position on its Annex VIII and Annex XI entries would depend on the outcome of the discussions. All delegations entered scrutiny reservations. A number of them (AT, DK, ES, HU, IT, NL, LU) expressed concerns about any possible deletion of Article 57 as suggested in the non paper.

iii)

Article 57 is not applicable in relation to periods completed under the legislation of another Member State in this specific case.
4.

The following paragraph shall be added to Article 52:

"5. Notwithstanding the provisions of subparagraphs 1 to 3, the pro rata calculation

shall not apply to schemes providing benefits in respect of which periods of time

are of no relevance to the calculation, under the condition that such schemes are

listed in Annex VIII part 2. In such cases the person shall be entitled to the benefit

calculated in accordance with the legislation of the Member State concerned."

5.

In Article 56(1)(c), before the words "in accordance with the procedures laid down in Annex XI", the words "where necessary" are inserted.

6.

In Article 56, the following paragraph 1(d) is inserted:

"(d) If subparagraph (c) is not applicable because the legislation of a Member state

provides that the benefit is to be calculated on the basis of other elements than

periods of insurance or residence which are not linked to time, the competent

institution shall take into account , in respect of each period of insurance or

residence completed under the legislation of any other Member State, the amount

of the capital accrued, the capital which is considered as having been accrued or

any other element for the calculation under the legislation it administers divided

by the corresponding units of periods in the pension scheme concerned."

7.

In Article 57, the following paragraph 4 is inserted:

"4. This Article shall not apply if a person has completed periods of insurance or

residence in a scheme listed in Annex VIII part 2."

New text suggested by the Presidency. 4

New text suggested by the Presidency in the light of AT's suggested text to amend Article 56(1)(c) (DS 644/06). 5

New text suggested by the Presidency.

ANNEX

The Annexes to Regulation (EC) No 883/2004 are amended as follows:

1.

(pm. Title I, doc. 7772/06)

2.

Annex VIII is amended as follows :

(a) the title of the Annex is replaced by the following:

"CASES IN WHICH THE PRO RATA CALCULATION SHALL BE WAIVED

OR SHALL NOT APPLY";

Part 1 cases in which the pro rata calculation shall be waived

(b) after the entry under the heading "A. DENMARK" the following entry is added:

"AA. GERMANY

Benefits of a Berufsständische Versorgungseinrichtung für die kammerfähigen Berufe (welfare institution for professions that have set up their own chambers).";

"Basic or supplementary schemes in which old-age benefits are calculated on the basis

of retirement points.";

It was agreed that the Working Party would return to Annex VIII in the light of the outcome of the discussions on DS 644/06, the Commission's services non paper and DS 459/06. 7

Titles modified by the Presidency. In the light of the agreed wording of the Articles concerned, Annex VIII will be divided into two different parts.

(d) after the entry under the heading "D. NETHERLANDS" the following entries are added:

"DA. AUSTRIA

Benefits or parts of benefits of a Versorgungseinrichtung der Kammern der Freien

Berufe (Welfare Institution of the Chambers for Liberal Professions), which are

financed exclusively by a capital-funded pension scheme or which are based on a

pension account system.

DB. POLAND

Old age pensions under the scheme based on the defined contribution principle.";

(e) after the entry under the heading "G. UNITED KINGDOM" the following entries are added:

"All applications for graduated retirement benefits paid pursuant to the National

Insurance Act 1965, sections 36 and 37, and the National Insurance Act (Northern

Ireland) 1966, sections 35 and 36.

All applications for additional pension pursuant to the Social Security Contributions and

Benefits Act 1992, section 44, and the Social Security Contributions and Benefits

(Northern Ireland) Act 1992, section 44."

It was agreed that SK's request for a new entry (DS 345/06) would be discussed in the light of the outcome of the discussions on DS 644/06 and the Commission's services non paper. SK entered a scrutiny reservation on these proposals in relation for its request for a new entry.

3.

Annex XI is replaced by the following:

"ANNEX XI

SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF

THE MEMBER STATES

(Articles 51(3), 56(1) and 83)

(p m: Commission text)

C. DENMARK

2.

(a) For the purpose of calculating the pension under the lov om social pension (Social Pension Act), periods of activity as an employed or self-employed person

completed under Danish legislation by a frontier worker or a worker who has gone

to Denmark to do work of a seasonal nature are regarded as periods of residence

completed in Denmark by the surviving spouse insofar as, during those periods,

the surviving spouse was linked to the above-mentioned worker by marriage

without separation from bed and board or de facto separation on grounds of

incompatibility and provided that during those periods the spouse resided in the

territory of another Member State.

For the purposes of this paragraph, "work of a seasonal nature" means work

which, being dependent on the succession of the seasons, automatically recurs

each year.

(b) For the purpose of calculating the pension under the lov om social pension (Social Pension Act), periods of activity as an employed or self-employed person

completed under Danish legislation before 1 January 1984 by a person to whom

paragraph 2(a) does not apply shall be regarded as periods of residence completed

in Denmark by the surviving spouse, insofar as, during those periods,

the surviving spouse was linked to the person by marriage without separation

from bed and board or de facto separation on grounds of incompatibility, and

provided that, during those periods, the spouse resided in the territory of another

Member State.

(c) Periods to be taken into account under the terms of (a) and (b) shall not be taken into consideration if they coincide with the periods taken into account for the

calculation of the pension due to the person concerned under the legislation on

compulsory insurance of another Member State or with the periods during which

the person concerned received a pension under such legislation. These periods

shall, however, be taken into consideration if the annual amount of the said

pension is less than half the basic amount of the social pension.

3.

(a) Notwithstanding the provisions of Article 6, persons who have not been gainfully employed in one or more Member States are entitled to a Danish social pension

only if they have been, or have previously been, permanent residents of Denmark

for at least three years, subject to the age limits prescribed by Danish legislation.

Subject to Article 4, Article 7 does not apply to a Danish social pension to which

entitlement has been acquired by such persons.

(b) The above-mentioned provisions do not apply to Danish social pension entitlement for the family members of persons who are or have been gainfully

employed in Denmark, or for students or the members of their families.

5.

Where the beneficiary of a Danish social pension is also entitled to a survivor's pension from another Member State, these pensions for the implementation of Danish legislation

shall be regarded as benefits of the same kind within the meaning of Article 53(1),

subject to the condition, however, that the person whose periods of insurance or of

residence serve as the basis for the calculation of the survivor's pension had also

acquired a right to a Danish social pension.

D.GERMANY

5.

The pauschale Anrechnungszeit (fixed credit period) pursuant to Article 253 of the Sozialgesetzbuch VI (Volume VI of the Social Code) shall be determined exclusively

with reference to German periods.

6.

In cases where the German pension legislation, in force on 31 December 1991, is applicable for the recalculation of a pension, only the German legislation [...] applies

for the purposes of crediting German Ersatzzeiten (substitute periods).

7.

The German legislation on accidents at work and occupational diseases to be compensated for under the law governing foreign pensions and for benefits for

insurance periods which can be credited under the law governing foreign pensions in the

territories named in paragraph 1(2)(3) of the Act on affairs of displaced persons and

refugees (Bundesvertriebenengesetz) continues to apply within the scope of application

of this Regulation notwithstanding the provisions of paragraph 2 of the Act on foreign

pensions (Fremdrentengesetz).

G. SPAIN

1.

In all Spanish social security schemes, with the exception of the scheme for civil servants, the armed forces and the judicial administration, a person who is no

longer insured under Spanish legislation shall be deemed still to be insured, when the

risk materialises, for the purposes of Chapter 5 of Title III of this Regulation, if he is

insured under the legislation of another Member State at the time of materialisation of

the risk or, failing that, in the case where a benefit is due for the same risk in pursuance

of the legislation of another Member State. The latter condition shall be deemed to have

been fulfilled, however, in the case referred to in Article 57(1).

2.

For the purposes of implementing Article 52(1)(b)(i) of the Regulation, the years which the worker lacks to reach the pensionable or compulsory retirement age as stipulated

under Article 31(4) of the consolidated version of the Ley de Clases Pasivas del Estado

(Law on State Pensioners) shall be taken into account as actual years of service to the

State only if at the time of the event in respect of which invalidity or death pensions are

due, the beneficiary was covered by Spain's special scheme for civil servants or was

performing an activity assimilated under the scheme, or if, at the time of the event in

respect of which the pensions are due, the beneficiary was performing an activity that

would have required the person concerned to be included under the State's special

scheme for civil servants, the armed forces or the judiciary, had the activity been

performed in Spain.

3.

(a) Under Article 56(1)(c), the calculation of the theoretical Spanish benefit shall be carried out on the basis of the actual contributions of the person during the years

immediately preceding payment of the last contribution to Spanish social security.

Where, in the calculation of the basic amount for the pension, periods of insurance

and/or residence under the legislation of other Member States have to be taken

into account, the contribution basis in Spain which is closest in time to the

reference periods shall be used for the aforementioned periods, taking into

account the development of the retail price index.

3.

(b) The amount of the pension obtained shall be increased by the amount of the increases and revaluations calculated for each subsequent year for pensions of the

same nature.

4.

Periods completed in other Member States which must be calculated in the special scheme for civil servants, the armed forces and the judicial administration, will be

treated in the same way, for the purposes of Article 56 of the Regulation, as the periods

closest in time covered as a civil servant in Spain.

Linguistic reservation by the Spanish delegation. It was agreed that the Spanish version of this text should be taken from DS 454/06.

5.(new) The additional amounts based on age referred to in the Second Transitional

Provision of the General Law on Social Security shall be applicable to all

beneficiaries of the Regulation who have contributions to their name under the

Spanish legislation prior to 1 January 1967; it shall not be possible, by application

of Article 5 of the Regulation, to treat periods of insurance credited in another

Member State prior to the aforementioned date as being the same as contributions

paid in Spain, solely for the present purposes. The date corresponding to 1

January 1967 shall be 1 August 1970 for the Special Scheme for Seafarers and

1 April 1969 for the Special Social Security Scheme for Coal Mining.

H. FRANCE

2.

French legislation applicable to a person engaged, or formerly engaged, in an activity as an employed or self-employed person for the application of Chapter 5 of Title III of the

Regulation includes both the basic old-age insurance scheme(s) and the supplementary

retirement scheme(s) to which the person concerned was subject.

I. IRELAND

2.

Where Article 46 applies, if the person concerned suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, Ireland shall, for the

purposes of Section 118(1)(a) of the Social Welfare Consolidation Act 2005, take

account of any periods during which, in respect of the invalidity that followed that

incapacity for work, he would have been regarded as being incapable of work under

Irish legislation.

New entry as suggested by the Spanish delegation (DS 565/06) and agreed by the Working Party. 11

FR stressed that the French version of this entry should be as set out in DS 114/06.

Q. NETHERLANDS

2.

Application of the Algemene Ouderdomswet (AOW) (Netherlands legislation on general old-age insurance)

(a) The reduction referred to in Article 13(1) of the Algemene Ouderdomswet (AOW) (Netherlands legislation on general old-age insurance) shall not be applied for

calendar years before 1 January 1957 during which a recipient not satisfying the

conditions for having such years treated as periods of insurance:

-

resided in the Netherlands between the ages of 15 and 65, or
-

while residing in another Member State, worked in the Netherlands for an employer established in the Netherlands, or
-

worked in another Member State during periods regarded as periods of insurance under the Netherlands social security system.

By way of derogation from Article 7 of the AOW, anyone who resided or worked

in the Netherlands in accordance with the above conditions only prior to

1 January 1957 shall also be regarded as being entitled to a pension.

(b) The reduction referred to in Article 13(1) of the AOW shall not apply to calendar years prior to 2 August 1989 during which, between the ages of 15 and 65, a

person who is or was married was not insured under the above legislation, whilst

being resident in the territory of a Member State other than the Netherlands, if

these calendar years coincide with periods of insurance completed by the person's

spouse under that legislation or with calendar years to be taken into account under

paragraph 2(a), provided that the couple's marriage subsisted during that time.

By way of derogation from Article 7 of the AOW, such person shall be regarded

as entitled to a pension.

See note by the Netherlands delegation (DS 702/06).

(c) The reduction referred to in Article 13(2) of the AOW shall not apply to calendar years before 1 January 1957 during which a pensioner's spouse who fails to satisfy

the conditions for having such years treated as periods of insurance:

-

resided in the Netherlands between the ages of 15 and 65, or
-

while residing in another Member State, worked in the Netherlands for an employer established in the Netherlands, or
-

worked in another Member State during periods regarded as periods of insurance under the Netherlands social security system.

(d) The reduction referred to in Article 13(2) of the AOW shall not apply to calendar years prior to 2 August 1989 during which, between the ages of 15 and 65, a

pensioner's spouse resident in a Member State other than the Netherlands was not

insured under the above legislation, if those calendar years coincide with periods

of insurance completed by the pensioner under that legislation or with calendar

years to be taken into account under paragraph 2(a), provided that the couple's

marriage subsisted during that time.

(e) Paragraphs 2(a), 2(b), 2(c) and 2(d) shall not apply to periods which coincide with:

-

periods which may be taken into account for calculating pension rights under the old-age insurance legislation of a Member State other than the

Netherlands, or

-

periods for which the person concerned has drawn an old-age pension under such legislation.

Periods of voluntary insurance under the system of another Member State shall

not be taken into account for the purposes of this provision.

(f) Paragraphs 2(a), 2(b), 2(c) and 2(d) shall apply only if the person concerned has resided in one or more Member States for six years after the age of 59 and only

for such time as that person is resident in one of those Member States.

(g) By way of derogation from Chapter IV of the AOW, anyone resident in a Member State other than the Netherlands whose spouse is covered by compulsory

insurance under that legislation shall be authorised to take out voluntary insurance

under that legislation for periods during which the spouse is compulsorily insured.

This authorisation shall not cease where the spouse's compulsory insurance is

terminated as a result of his death and where the survivor receives only a pension

under the Algemene nabestaandenwet (Netherlands legislation on general law for

surviving dependants).

In any event, the authorisation in respect of voluntary insurance ceases on the date

on which the person reaches the age of 65.

The contribution to be paid for voluntary insurance shall be set in accordance with

the provisions relating to the determination of the contribution for voluntary

insurance under the AOW. However, if the voluntary insurance follows on from a

period of insurance as referred to in paragraph 2(b), the contribution shall be set in

accordance with the provisions relating to the determination of the contribution

for compulsory insurance under the AOW, with the income to be taken into

account being deemed to have been received in the Netherlands.

(h) The authorisation referred to in paragraph 2(g) shall not be granted to anyone insured under another Member State's legislation on pensions or survivors'

benefits.

(i) Anyone wishing to take out voluntary insurance under paragraph 2(g) shall be required to apply for it to the Social Insurance Bank (Sociale Verzekeringsbank)

not later than one year after the date on which the conditions for participation are

fulfilled.

(j) For the purposes of Article 52(1)(b), only periods of insurance completed under the AOW after the age of 15 shall be taken into account as periods of insurance.

3.

Application of the Algemene nabestaandenwet (ANW) (Netherlands general law on insurance for surviving dependants)

(a) A person who has been compulsorily insured under the Algemene nabestaandenwet (ANW) (Netherlands general law on insurance for surviving

dependants) shall be deemed, for the purposes of Chapter 5 of Title III, to be

insured under that legislation at the time when the risk materialises, if that person

is insured under the legislation of another Member State for the same risk or,

failing that, in the case where a survivor's pension is due under the legislation of

another Member State. The latter condition shall be deemed to have been fulfilled,

however, in the case referred to in Article 57(1).

(b) Where the surviving spouse is entitled to a survivor's pension under the ANW pursuant to paragraph 3(a), that pension shall be calculated in accordance with

Article 52(1)(b).

For the application of these provisions, periods of insurance prior to

1 October 1959 shall also be regarded as periods of insurance completed under

Netherlands legislation if during those periods the insured person, after the age

of 15:

-

resided in the Netherlands, or
-

while resident in another Member State, worked in the Netherlands for an employer established in the Netherlands, or
-

worked in another Member State during periods regarded as periods of insurance under the Netherlands social security system.

(c) Account shall not be taken of the periods to be taken into consideration under paragraph 3(b) which coincide with periods of compulsory insurance completed

under the legislation of another Member State in respect of survivor's pensions.

(d) For the purposes of Article 52(1)(b), only periods of insurance completed under Netherlands legislation after the age of 15 shall be taken into account as periods of

insurance.

(e) By way of derogation from Article 63a(1) of the ANW, a person resident in a Member State other than the Netherlands whose spouse is compulsorily insured

under the ANW shall be authorised to take out voluntary insurance under that

legislation, provided that such insurance has already begun by [date of Regulation

883/04 becoming applicable], but only for periods during which the spouse is

compulsorily insured. This authorisation shall cease as from the date of

termination of the spouse's compulsory insurance under the ANW, unless the

spouse's compulsory insurance is terminated as a result of his death and where the

survivor only receives a pension under the ANW.

In any event, the authorisation in respect of voluntary insurance ceases on the date

on which the person reaches the age of 65.

The contribution to be paid for voluntary insurance shall be set in accordance with

the provisions relating to the determination of contributions for voluntary

insurance under the ANW. However, if the voluntary insurance follows on from a

period of insurance as referred to in paragraph 2(b), the contribution shall be set in

accordance with the provisions relating to the determination of contributions for

compulsory insurance under the ANW, with the income to be taken into account

being deemed to have been received in the Netherlands.

4.

Application of Netherlands legislation relating to incapacity for work

(a) A person who is no longer insured under the Algemene Arbeidsongeschiktheidswet (AAW) (General Act on Incapacity for Work), the

Wet arbeidsongeschiktheidsverzekering zelfstandigen (WAZ) (Self-Employed

Persons Act on Incapacity for Work) and/or the Wet op de

arbeidsongeschiktheidsverzekering (WAO) (Act on Incapacity for Work) or the

Wet Werk en inkomen naar arbeidsvermogen (WIA) (Work and Income

according to labour capacity Act) shall be deemed, for the purposes of Chapter 5

of Title III, to be still insured at the time then the risk materialises, if that person is

insured for the same risk under the legislation of another Member State or, failing

that, is entitled to a benefit under the legislation of another Member State for the

same risk. The latter condition shall, however, be deemed to be fulfilled in the

case referred to in Article 57 (1).

(b) pursuant to paragraph 4 (a), the person concerned is entitled to a Netherlands invalidity benefit, the amount referred to in Article 52 (1) (b) for calculating that

benefit shall be determined:

(i) where, prior to the occurrence of incapacity for work, the person last exercised an activity as an employed person within the meaning of Article

1(a):

-

in accordance with the provisions laid down in the WAO if the incapacity for work occurred before 1 January 2004 or
-

in accordance with the provisions laid down in the WIA if the incapacity for work occurred on or after 1 January 2004.

(ii) where, prior to the occurrence of the incapacity for work, the person

concerned last exercised an activity as a self-employed person within the

meaning of Article 1 (b), in accordance with the provisions laid down in the

WAZ if the incapacity for work occurred before 1 August 2004.

Amendment suggested by NL (DS 702/06).

-

periods of paid employment and periods treated as such, completed in the Netherlands before 1 July 1967;
-

periods of insurance completed under the WAO;
-

periods of insurance completed by the person concerned, after the age of 15, under the AAW, insofar as these do not coincide with the periods of

insurance completed under the WAO;

-

periods of insurance completed under the WAZ;
-

periods of insurance completed under the WIA.

R.AUSTRIA

1.

For the purpose of acquiring periods in the pension insurance, attendance at a school or comparable educational establishment in another Member State shall be regarded as

equivalent to attendance at a school or educational establishment pursuant to

Articles 227(1)(1) and 228(1)(3) of the Allgemeines Sozialversicherungsgesetz (ASVG)

(general social security act), Article 116(7) of the Gewerbliches

Sozialversicherungsgesetz (GSVG) (Federal Act on Social Insurance for Persons

engaged in Trade and Commerce) and Article 107(7) of the Bauern-

Sozialversicherungsgesetz (BSVG) (social security act for farmers), when the

person concerned was subject at some time to Austrian legislation on the grounds that

he pursued an activity as an employed or self-employed person, and the special

contributions provided for under Article 227(3) of the ASVG, Article 116(9) of the

GSVG and Article 107(9) of the BSGV for the purchase of such periods of education,

are paid.

2.

(deleted)
3.

For the calculation of the pro rata benefit referred to in Article 52(1)(b), special increments for contributions for supplementary insurance and the miner's supplementary

benefit under Austrian legislation shall be disregarded. In these cases the pro rata

benefit calculated without those contributions shall, if appropriate, be increased by

unreduced special increments for contributions for supplementary insurance and the

miner's supplementary benefit.

4.

Where pursuant to Article 6 substitute periods under an Austrian pension insurance scheme have been completed, but these cannot form a basis for calculation pursuant to

Articles 238 and 239 of the Allgemeines Sozialversicherungsgesetz (ASVG) (general

social security act), Articles 122 and 123 of the Gewerbliches Sozialversicherungsgesetz

(GSVG) (Federal Act on Social Insurance for Persons engaged in Trade and Commerce)

and Articles 113 and 114 of the Bauern-Sozialversicherungsgesetz (BSVG) (social

security act for farmers), the calculation basis for periods of childcare pursuant to

Article 239 of the ASVG, Article 123 of the GSVG and Article 114 of the BSVG shall

be used.

5.

(deleted).

W.FINLAND

1.

A person who is no longer insured under the National Pensions scheme is regarded, when applying the provisions of Chapter 5 of Title III of this Regulation, as retaining

the status of an insured person if, when the risk materialises, he or she is insured for the

same risk under the legislation of another Member State or, failing that, is entitled to a

benefit for the same risk under the legislation of another Member State. The latter

condition shall, however, be deemed to be fulfilled in the case referred to in

Article 57(1).

2.

For the purposes of determining entitlement and of calculating the amount of the Finnish national pension under Articles 52 to 54, pensions acquired under the legislation

of another Member State are treated in the same way as pensions acquired under Finnish

legislation.

3.

When applying Article 52(1)(b)(i) for the purpose of calculating of earnings for the credited period under Finnish legislation on earnings-related pensions, where an

individual has pension insurance periods based on activity as an employed or self-

employed person in another Member State for part of the reference period under Finnish

legislation, the earnings for the credited period shall be equivalent to the sum of

earnings obtained during the part of the reference period in Finland divided by the

number of months for which there were insurance periods in Finland during the

reference period.

X.SWEDEN

2.

The provisions of this Regulation on the aggregation of insurance periods and periods of residence shall not apply to the transitional provisions in the Swedish legislation on

entitlement to guarantee pension for persons born in or before 1937 who have been

resident in Sweden for a specified period before applying for a pension (Act 2000:798).

The Working Party discussed a note by AT (DS 576/06) regarding a suggestion for a new Article 11a in the implementing Regulation as an horizontal solution to replace the Finnish and Swedish entries. While accepting these entries, CION expressed a preference for such an horizontal solution and invited the Finnish and Swedish delegations to examine the implications it could have. LU expressed strong support for the AT proposal. IE, IT, FR and PT expressed agreement with the principle of this proposal but entered scrutiny reservations as they considered that it should be discussed further, in particular with regard to the calculation aspects. While expressing appreciation for the idea of a uniform solution, DK and EE were concerned about possible problems of interpretation as this provision would cover all categories of benefits and stressed that it should be subject to careful examination. EE felt that any such provisions should be discussed on a chapter by chapter basis and stressed that it could go along with the provisions regarding examination of entitlement but not with those on calculation. SE felt that any such rule would open up better rights for migrants but expressed doubts as to how it would be applied, in particular with regard to the calculation aspects. EL, HU, LV, LT, NL and UK entered scrutiny reservations. FI maintained a scrutiny reservation, stressing that the Finnish and Swedish legislations were by no means similar and sharing SE's views that the ECJ rulings in the Rockler and Öberg cases should not be taken into account as these cases were highly specific and dealt with situations for which the Regulation 1408/71 did not apply.

3.

For the purpose of calculating income for notional income-related sickness compensation and income-related activity compensation in accordance with Chapter 8

of the Lag (1962:381) om allmän försäkrings (the National Insurance Act), the

following shall apply:

(a) where the insured person, during the reference period, has also been subject to the legislation of one or more other Member States on account of activity as an

employed or self-employed person, income in the Member State(s) concerned

shall be deemed to be equivalent to the insured person's average gross income in

Sweden during the part of the reference period in Sweden, calculated by dividing

the earnings in Sweden by the number of years over which those earnings

accrued;

(b) where the benefits are calculated pursuant to Article 46 and persons are not insured in Sweden, the reference period shall be determined in accordance with

Chapter 8, paragraphs 2 and 8 of the abovementioned Act as if the person

concerned were insured in Sweden. If the person concerned has no pension-

generating income during this period under the Act on income-based old-age

pension (1998:674), the reference period shall be permitted to run from the earlier

point in time when the insured person had income from gainful activity in

Sweden.

4.

a) For the purpose of calculating notional pension asset for income-based survivor's pension (Act 2000:461), if the requirement in Swedish legislation for pension

entitlement in respect of at least three out of the five calendar years immediately

preceding the insured person's death (reference period) is not met, account shall

also be taken of insurance periods completed in other Member States as if they

had been completed in Sweden. Insurance periods in other Member States shall be

regarded as based on the average Swedish pension base. If the person concerned

has only one year in Sweden with a pension base, each insurance period in another

Member State shall be regarded as constituting the same amount.

See footnote 13

b)

For the purpose of calculating notional pension credits for widow's pensions relating to deaths on or after 1 January 2003, if the requirement in Swedish

legislation for pension credits in respect of at least two out of the four years

immediately preceding the insured person's death (reference period) is not met

and insurance periods were completed in another Member State during the

reference period, those years shall be regarded as being based on the same pension

credits as the Swedish year.

Y. UNITED KINGDOM

1.

Where, in accordance with United Kingdom legislation, a person may be entitled to a retirement pension if:

(a) the contributions of a former spouse are taken into account as if they were that person's own contributions; or

(b) the relevant contribution conditions are satisfied by that person's spouse or former spouse, then provided, in each case, that the spouse or former spouse is or had

been exercising an activity as an employed or self-employed person, and had been

subject to the legislation of two or more Member States, the provisions of

Chapter 5 of Title III of this Regulation shall apply in order to determine

entitlement under United Kingdom legislation. In this case, references in the said

Chapter 5 to "periods of insurance" shall be construed as references to periods of

insurance completed by:

(i) a spouse or former spouse where a claim is made by:

-

a married woman; or
-

a person whose marriage has terminated otherwise than by the death of the spouse, or

See footnote 13

(ii) a former spouse, where a claim is made by:

-

a widower who immediately before pensionable age is not entitled to widowed parent's allowance; or
-

a widow who immediately before pensionable age is not entitled to widowed mother's allowance, widowed parent's allowance or

widow's pension, or who is only entitled to an age-related widow's

pension calculated pursuant to Article 52(1)(b), and for this purpose

"age-related widow's pension" means a widow's pension payable at a

reduced rate in accordance with section 39(4) of the Social Security

Contributions and Benefits Act 1992.

4.

Where Article 46 applies, if the person concerned suffers incapacity for work leading to invalidity while subject to the legislation of another Member State, the United Kingdom

shall, for the purposes of Section 30A (5) of the Social Security Contributions and

Benefits Act 1992, take account of any periods during which the person concerned has

received, in respect of that incapacity for work:

(i) cash sickness benefits or wages or salary in lieu thereof, or

(ii) benefits within the meaning of Chapters 4 and 5 of Title III granted in respect of

the invalidity which followed that incapacity for work, under the legislation of the

other Member State, as though they were periods of short-term incapacity benefit

paid in accordance with Sections 30A (1)-(4) of the Social Security Contributions

and Benefits Act 1992.

In applying this provision, account shall only be taken of periods during which the

person would have been incapable of work within the meaning of United Kingdom

legislation.

5.

(1) For the purpose of calculating an earnings factor in order to determine entitlement to benefits under United Kingdom legislation, for each week of activity as an

employed person under the legislation of another Member State, and which

commenced during the relevant income tax year within the meaning of United

Kingdom legislation, the person concerned shall be deemed to have paid

contributions as an employed earner, or have earnings on which contributions

have been paid, on the basis of earnings equivalent to two-thirds of that year's

upper earnings limit.

(2) For the purposes of Article 52(1)(b)(ii), where:

(a) in any income tax year starting on or after 6 April 1975, a person carrying out activity as an employed person has completed periods of insurance,

employment or residence exclusively in a Member State other than the

United Kingdom, and the application of paragraph 6(1) above results in that

year being counted as a qualifying year within the meaning of United

Kingdom legislation for the purposes of Article 52(1)(b)(i), he shall be

deemed to have been insured for 52 weeks in that year in that other

Member State;

(b) any income tax year starting on or after 6 April 1975 does not count as a qualifying year within the meaning of United Kingdom legislation for the

purposes of Article 52(1)(b)(i), any periods of insurance, employment or

residence completed in that year shall be disregarded.

(3) For the purpose of converting an earnings factor into periods of insurance, the earnings factor achieved in the relevant income tax year within the meaning of

United Kingdom legislation shall be divided by that year's lower earnings limit.

The result shall be expressed as a whole number, any remaining fraction being

ignored. The figure so calculated shall be treated as representing the number of

weeks of insurance completed under United Kingdom legislation during that year

provided that such figure shall not exceed the number of weeks during which in

that year the person was subject to that legislation."

____________________

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publicatiedatum	05-10-2006
kenmerk	13166/06