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.
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Article 10a (10)
Special non-contributory benefits
provisions of Article 10 and of Title
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
Stay outside the competent State — Return
to or transfer of residence to another
Need to go to another
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:
(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) who, having become entitled to benefits chargeable to the
competent institution, is authorized by
that institution to return to the territory
is authorized by the competent institution to go to the territory of another
(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.
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;
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. ◄
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
benefits in kind shall be provided on behalf of the institution of the
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period during which benefits are provided shall, however, be that laid down under
the legislation of the
authorization required under paragraph 1 (c) shall be issued by the institution
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
R. Burrage – Legal adviser to the British Expatriates Association (