Council Regulation (EC) No 3095/95 of 22 December 1995 amending Regulation (EEC) No 1408/71 on the application of social security schemes to employed persons, to self- employed persons and to members of their families moving within the Community, Regulation (EEC) No 574/72 fixing the procedure for implementing Regulation (EEC) No 1408/71, Regulation (EEC) No 1247/92 amending Regulation (EEC) No 1408/71 and Regulation (EEC) No 1945/93 amending Regulation (EEC) No 1247/92

Notwithstanding Article 2 of this Regulation, Article 22 (1) (a) and (c) shall also apply to persons who are nationals of a Member State and are insured under the legislation of a Member State and to the members of their families residing with them.’;

The institution which is responsible for granting benefits in kind and cash benefits to the unemployed persons referred to in Article 25 (2) and which belongs to a Member State whose legislation provides for deduction of contributions payable by unemployed persons to cover sickness and maternity benefits shall be authorized to make such deductions in accordance with the provisions of its legislation.’;

1 Regulation (EEC) No 1247/92 shall not provide any entitlement for periods prior to 1 June 1992.

2 The periods of residence and periods of employment or of self-employment completed on the territory of a Member State before 1 June 1992 shall be taken into consideration for the determination of rights acquired under the provisions of Regulation (EEC) No 1247/92.

3 Subject to paragraph 1, a right shall be acquired pursuant to Regulation (EEC) No 1247/92 even where it relates to a contingency that occurred before 1 June 1992.

4 All special non-contributory benefits which have not been awarded or which have been suspended by reason of the nationality of the person concerned shall, on the application of the person concerned, be awarded or resumed with effect from 1 June 1992, provided that the rights previously determined have not given rise to a lump-sum payment.

5 The rights of persons to whom a pension was awarded prior to 1 June 1992, may, on the application of the persons concerned, be reviewed, taking account of the provisions of Regulation (EEC) No 1247/92.

6 If an application referred to in paragraph 4 or 5 is submitted within two years from 1 June 1992, the rights acquired pursuant to Regulation (EEC) No 1247/92 shall have effect from that date, and the provisions of the legislation of any Member State concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.

7 If an application referred to in paragraph 4 or 5 is submitted after the expiry of the two-year period after 1 June 1992, rights which have not been forfeited or which are not time-barred shall have effect from the date on which the application was submitted, except where more favourable provisions of the legislation of any Member State apply.

8 The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the withdrawal of benefits which are awarded before 1 June 1992 by the competent institutions of the Member States under Title III of Regulation (EEC) No 1408/71 to which Article 10 of the latter Regulation is applicable.

9 The application of Article 1 of Regulation (EEC) No 1247/92 may not result in the rejection of an application for a special non-contributory benefit awarded as a supplement to a pension, which was submitted by the person concerned who had satisfied the conditions for the award of this benefit before 1 June 1992, even where the person concerned resides on the territory of a Member State other than the competent Member State, provided that the application for the benefit is submitted within a period of five years starting from 1 June 1992.

10 Notwithstanding the provisions of paragraph 1, any special non-contributory benefit, granted as a supplement to a pension, which has not been awarded or which has been suspended by reason of the residence of the person concerned on the territory of a Member State other than the competent Member State shall, on the application of the person concerned, be awarded or resumed with effect from 1 June 1992, in the first case from the date on which the benefit should have been awarded, and in the second case on the date of suspension of the benefit.

11 Where special non-contributory benefits as referred to in Article 4 (2a) of Regulation (EEC) No 1408/71 may, during the same period and for the same person, be granted pursuant to Article 10a of that Regulation by the competent institution of the Member State in the territory of which that person is resident and pursuant to paragraphs 1 to 10 of this Article by the competent institution of another Member State, the person concerned may only aggregate those benefits up to the limit of the highest amount of the special benefit he could claim under one of the legislations in question.

12 The detailed rules of application of paragraph 11, and in particular the application, with regard to the benefits referred to in that paragraph, of the clauses for reduction, suspension or abolition provided for under the legislation of one or more Member States and the allocation of the differential additional amounts shall be set by decision of the Administrative Commission on Social Security for Migrant Workers and, where appropriate, by common accord of the Member States concerned or their competent authorities.’;

1 The amount of the benefits in kind provided pursuant to Articles 28 (1) and 28a of the Regulation shall be refunded by the competent institutions to the institutions which provided the said benefits, on the basis of a lump sum which is as close as possible to the actual expenditure incurred.

2 The lump sum shall be determined by multiplying the annual average per capita cost by the average annual number of pensioners and members of their families to be taken into account and by reducing the resultant amount by 20 %.

3 The factors necessary for the calculation of the said lump sum shall be determined according to the following rules: (a) the average annual per capita cost shall be obtained for each Member State, by dividing the annual costs of the total benefits in kind provided by the institutions of that Member State to all pensioners whose pensions are payable under the legislation of that Member State, under the social security schemes to be taken into consideration and to members of their families, by the average annual number of pensioners and members of their families; the social security schemes to be taken into consideration for that purpose are specified in Annex 9; (b) in dealings between the institutions of two Member States, the average annual number of pensioners and members of their families to be taken into account shall be equal to the average annual number of pensioners and members of their families referred to in Article 28 (2) of the Regulation who, whilst residing in the territory of one of the Member States, are entitled to benefits in kind chargeable to the institution of the other Member State.

4 The number of pensioners and members of their families to be taken into account in accordance with paragraph 3 (b) shall be determined by means of a list kept for that purpose by the institution of the place of residence, based upon documentary evidence supplied by the competent institution of the rights of the persons concerned. In the event of any dispute, the observations of the institutions involved shall be submitted to the Audit Board provided for in Article 101 (3) of the implementing Regulation.

5 The Administrative Commission shall lay down the methods and procedures for determining the calculation factors referred to in paragraphs 3 and 4.

6 Two or more Member States or the competent authorities of those Member States may, after receiving the opinion of the Administrative Commission, agree to introduce other methods of assessing the amounts to be refunded.’;

In Regulation (EEC) No 1247/92 Article 2 shall be deleted.

Regulation (EEC) No 1945/93 shall be amended as follows: 1. Article 3 is deleted; 2. In Article 4, point 10 shall be deleted.

1 This Regulation shall enter into force on the first day of the month following its publication in the Official Journal of the European Communities.

2 Article 2 (2) shall apply as from 1 January 1998. However, in relations with the French Republic, Article 2 (2) shall apply as from 1 January 2002.