Extract from Council Regulations 1408/71.

Below we have highlighted in ‘blue’ the operative parts of the wording of the Articles 10 and 22 of the regulations upon which the Commission seek to rely in their infringement proceedings. We have highlighted in ‘red’ the proper effects of Case C-299/2005 of 18 October 2007. Other than my observations in ‘red’ the Articles below have been pasted from Council Regulations 1408/71. – See also our observations in the footnote.

 

Article 10

Waiving of residence clauses Effect of compulsory insurance on reimbursement of contributions

Save as otherwise provided in this Regulation (Here invalidity cash benefits were excluded as they had been wrongly classified as  ‘special non-contributory benefits – See below Article 10a) invalidity, old-age or survivors' cash benefits, pension for accidents at work or occupational diseases and death grants acquired under the legislation of one or more Member States shall not be subject to any reduction, modification, suspension, withdrawal or confiscation by reason of the fact that the recipient resides in the territory of a Member State other than that in  which the institution responsible for payment is situated.  The first subparagraph shall also apply to lump-sum benefits granted in cases of remarriage of a surviving spouse who was entitled to a survivors'  pension.

1971R1408 EN 28.04.2006 006.001 10

 

Article 10a (10)

Special non-contributory benefits

M8

1. The provisions of Article 10 and of Title III shall not apply to the special non-contributory cash benefits referred to in Article 4(2a). The persons to whom this Regulation applies shall receive these benefits exclusively in the territory of the Member State in which they reside and under the legislation of that State, in so far as these benefits are mentioned in Annex IIa. Benefits shall be paid by, and at the expense  of, the institution of the place of residence.

B

2. The institution of a Member State under whose legislation entitlement to benefits covered by paragraph 1 is subject to the completion of periods of employment, self-employment or residence shall regard, to the extent necessary, periods of employment, self-employment or residence completed in the territory of any other Member State as periods completed in the territory of the first Member State.

3. Where entitlement to a benefit covered by paragraph 1 but granted in the form of a supplement is subject, under the legislation of a Member State, to receipt of a benefit covered by Article 4 (1) (a) to (h), and no such benefit is due under that legislation, any corresponding benefit granted under the legislation of any other Member State shall be treated as a benefit granted under the legislation of the first Member State for the purposes of entitlement to the supplement.

   

(In the sub para.4 of Article 10a below we see where the Commission also rely, when determining the entitlement to any of those relevant disability benefits, where the circumstances leading to such entitlement occurs after a qualifying citizen takes up residence in another relevant State, Provided always that the other State does not become the Competent State for the award of such benefit. i.e. where such a person engages in any activity, which would then make them an insured person in that other State for the purposes of such benefits.)

    

4. Where the granting of a disability or invalidity benefit covered by paragraph 1 (Namely those benefits referred to in 10 above and Title III) is subject, under the legislation of a Member State, to the condition that the disability or invalidity should be diagnosed for the first time in the territory of that Member State, this condition shall be deemed to be fulfilled where such diagnosis is made for the first time in the territory of another Member State.

 

 

Article 22

Stay outside the competent State Return to or transfer of residence  to another Member State during sickness or maternity

Need to go to another Member State in order to receive appropriate  treatment

1. An employed or self-employed person who satisfies the conditions of the legislation of the competent State for entitlement to benefits, taking account where appropriate of the provisions of Article 18, and:

M7

(a) whose condition requires benefits in kind which become necessary  on medical grounds during a stay in the territory of another Member State, taking into account the nature of the benefits and the expected length of the stay;

B

(b) who, having become entitled to benefits chargeable to the competent  institution, is authorized by that institution to return to the territory  of the Member State where he resides, or to transfer his residence to  the territory of another Member State;

or

(c) who is authorized by the competent institution to go to the territory of another Member State to receive there the treatment appropriate to his condition, shall be entitled:

(i) to benefits in kind provided on behalf of the competent institution  by the institution of the place of stay or residence in accordance  with the provisions of the legislation which it administers as though he were insured with it; the length of the period during which benefits  are provided shall be governed, however, by the legislation of  the competent State;

(ii) to cash benefits provided by the competent institution in accordance with the provisions of the legislation which it administers. However, by agreement between the competent institution and the institution  of the place of stay or residence, such benefits may be provided by  the latter institution on behalf of the former, in accordance with the  provisions of the legislation of the competent State.

M7

1a. The Administrative Commission shall establish a list of benefits  in kind which, in order to be provided during a stay in another Member State, require, for practical reasons, a prior agreement between the  person concerned and the institution providing the care;

B

2. The authorization required under paragraph 1 (b) may be refused  only if it is established that movement of the person concerned would be prejudicial to his state of health or the receipt of medical treatment.  The authorization required under paragraph 1 (c) may not be refused  where the treatment in question is among the benefits provided for by  the legislation of the Member State on whose territory the person  concerned resided and where he cannot be given such treatment within  the time normally necessary for obtaining the treatment in question in the Member State of residence taking account of his current state of health and the probable course of the disease.

3. M7 Paragraphs 1, 1a and 2 shall apply by analogy to members  of the family of an employed or self-employed person.

However, for the purpose of applying paragraph 1 (a) and (c) (i) to the members of the family referred to in Article 19 (2) who reside in the territory of a Member State other than the one in whose territory the  employed or self-employed person resides:

(a) benefits in kind shall be provided on behalf of the institution of the Member State in whose territory the members of the family are residing by the institution of the place of stay in accordance with the provisions of the legislation which it administers as if the employed or self-employed person were insured there.

1971R1408 EN 28.04.2006 006.001 19

B

The period during which benefits are provided shall, however, be that laid down under the legislation of the Member State in whose territory the members of the family are residing;

(b) the authorization required under paragraph 1 (c) shall be issued by the institution of the Member State in whose territory the members of the family are residing.

4. The fact that the provisions of paragraph 1 apply to an employed or self-employed person shall not affect the right to benefit of members of his family.

 

Claimants Right to Re-secure  Earlier Withdrawn Benefit:

 

Where any of the benefits at issue were withdrawn solely because the recipient had taken up residence in another relevant State, then your right to re-secure your benefit from the date it was withdrawn, is set out in ECJ case of 18 April 2002. - Johann Franz Duchon v Pensionsversicherungsanstalt der Angestellten. - Reference for a preliminary ruling: Oberster Gerichtshof - Austria. Case, C-290/00. The proper effect of this case law was to take a lost benefit back to a date, even before Austria became a member of the EU (1995)

 

Right to Damages:

 

In addition to right righyt to recovery of accrued arrears, plus lost %interest you also have a right to damages for hurt caused by the UK’s misapplication of Community law, certainly as from 18 October 2007. This is set out in the ECJ ruling of 28 June 2001    magesGervais Larsy v Institut national d'assurances sociales pour travailleurs indépendants (INASTI). -: Cour du travail de Mons - Belgium. - Case C-118/00) – In this case the court held that the misapplication of Community law constitutes a ‘serious breach of Community law and ruled Larsy’s entitlement to damages.

 

Recent Judgments by the Upper Chamber:

 

All appellants should be aware that whilst those cases of 5 May 2009 - Case, CDLA/2078/2005 and 2 July 2009. Case - CDLA/2106/2006, were supportive in respect of the matter of the period in time when reinstatement could take effect, those cases on their own,  are insufficient upon which to rely since, (a) those cases were already pending appeal to await the recent decision of the ECJ and (b) the presiding Judge, John Mesher, specifically set out in  his ruling, when taking reinstatement in that first case back to 13 December 2001, that he did not have to rule in respect of prior to the Friedrich Jauch case of 8 March 2001 C-215/99.

 

Responsibility for the Preparation of Appeals:

 

It is extremely important for all appellants to also be aware that it is their responsibility, or that of those who represent them, to properly address their appeals and, not only to produce all relevant documentation but also the citing and preferably also the production of all supporting case law. This should also be effected with sufficient notice prior to the hearing, in order that the other side may respond, otherwise your case may be ‘stayed’. It is not the function of any judicial tribunal to prepare your appeals for you. It can also be seen from those recent decisions in the Upper Chamber, that no reference was made to ‘Duchon’ or ‘Larsy’, even though they provided very supportive evidence in each of those cases. This case law was sent to us on 26 January 2010 by the Commission when advising all our members to follow all the domestic appeals procedure in this matter

 

 

David R. Burrage – Legal adviser to the British Expatriates Association (Spain)