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C 92 E/208 Official Journal of the European Union EN 17.4.

2003

However, a requirement for ‘perfect or a very good knowledge of a particular language’ cannot be seen, as
such, as illegitimate under Community law provided that a very high level of knowledge of a particular
language is necessary for the post concerned; the employer has to justify the need for this requirement.

There is a clear difference between a ‘native speaker’ condition and a requirement for ‘perfect or a very
good knowledge of a particular language’ provided that a very high level of knowledge of that language is
necessary for the post concerned and that the employer can justify the need for this requirement. If a
migrant worker considers that a private employer, although asking for a ‘perfect or very good knowledge
of a particular language’, is only looking for a native speaker and therefore violates Community law, the
national courts have to evaluate this case individually according to the facts.

The Commission uses its powers to fight against any discrimination caused by a requirement for ‘native
speaker’ knowledge in job advertisements. Within the limits of its powers, it is currently investigating such
job advertisements which have been published by one Member State’s public authorities. The investigations
have not been finalised; in view of the results, the Commission will then decide about the next steps to
take.

(2003/C 92 E/268) WRITTEN QUESTION E-2779/02


by Luigi Cocilovo (PPE-DE) to the Commission

(3 October 2002)

Subject: Application of Regulations (EEC) No 1408/71 and No 574/72 in the context of the Agreement
between the European Community and the Swiss Confederation

The Swiss Federal Law on insurance for old age, invalidity and survivors makes provision for paying the
children of pensioners an additional annuity or supplementary pension, rather than actual family
allowances.

Since 1 June 2002 the application of Regulations (EEC) No 1408/71 (1) and No 574/72 (2) was extended to
Switzerland by virtue of the Agreement of 21 June 1999 between the European Community and the Swiss
Confederation. Can the Commission say how the arrangements for the simultaneous receipt of the Swiss
pension benefiting children and the family allowances provided for them under the legislation of other
Member States have been or will be regulated?

Do the provisions of Chapter 3 (pensions) of Regulation No 1408/71 or Chapter 8 (benefits for dependent
children) apply? For example, how would the case of a pensioner resident in Italy, who completed the last
period of insurance in Switzerland and is entitled to a pension from Switzerland for his children and
family allowances from Italy be dealt with? How are the judgments of the Court of Justice applied in
determining any differential additional amount?

It is unlikely that this problem can be settled by reference to Council Regulation (EC) No 1399/1999 (3) of
29 April 1999, since it only deals with the rights of orphans.

(1) OJ L 149, 5.7.1971, p. 2.


(2) OJ L 74, 27.3.1972, p. 1.
(3) OJ L 164, 30.6.1999, p. 1.

Answer given by Mrs Diamantopoulou on behalf of the Commission

(30 October 2002)

The Commission wishes to inform the Honourable Member that the Community rules co-ordinating the
national social security systems, and in particular Regulations (EEC) No 1408/71 (1) and (EEC) No 574/
72 (2), provide for detailed rules concerning the payment of benefits for dependent children of pensioners
in its Chapter 8. Since the entry into force of the Agreement on Free Movement of Persons between the
Community and Switzerland on 1 June 2002, the following rules therefore also apply with regard to
Switzerland:
17.4.2003 EN Official Journal of the European Union C 92 E/209

Article 77 of Regulation (EEC) No 1408/71 determines one Member State which is competent for paying
the benefits for dependent children of pensioners, distinguishing whether the person receives a pension
under the legislation of one or of more Member States: if a pensioner receives a pension from one Member
State only, this Member State is responsible for payment of benefits, irrespective of the place where the
pensioner or the children are residing. If, however, a person draws pensions from more than one Member
State and he resides in one of them, it is the state of residence that is competent for paying the benefits for
dependent children.

Where a pensioner receives pensions from more than one Member State, account must, however, be taken
of the jurisprudence of the Court of Justice regarding the payment of a differential amount (3): if the
amount of the benefits for dependent children paid by the Member State of residence to a pensioner is
lower than the amount of benefits which would be provided by another Member State which also pays a
pension to the person, then the second Member State must pay a differential amount equal to the
difference between the amount due under its legislation and the amount due under the legislation of the
Member State of residence. However, this principle only applies if the pension paid in the first Member
State is based exclusively on periods of insurance completed in this State (4).

According to the Commission’s information the Swiss child’s pension to which the Honourable Member
refers is paid to persons receiving a Swiss pension for their dependent children. As a supplementary
pension derived of the main pension it therefore seems to qualify as an increase or a supplement to a
pension according to Article 77 of Regulation (EEC) No 1408/71.

In conclusion, a pensioner with an Italian and a Swiss pension who resides in Italy would be entitled to
receive Italian family allowances for his dependent children pursuant to Article 77. If his entitlement to a
Swiss pension was opened based on Swiss insurance periods alone, without taking into account insurance
periods completed in other Member States, and if the amount of the Swiss child’s pension in regard of his
dependent children is higher than the Italian family allowance, then he is, nevertheless, entitled to receive
the complementary supplement from Switzerland equal to the difference between the two amounts.

(1) Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed
persons and their families moving within the Community, Regulation updated by Council Regulation (EC)
No 118/97 of 2 December 1996, OJ L 28, 30.1.1997.
(2) Regulation (EEC) No 574/72 of the Council of 21 March 1972 fixing the procedure for implementing Regulation
(EEC) No 1408/71 on the application of social security schemes to employed persons and their families moving
within the Community.
(3) Rulings of 11.6.1991, case C-251/89 Athanasopoulos, ECR [1991] I-2797; ruling of 27.2.1997, case C-59/95
Bastos Moriana, ECR [1997] I-1071; ruling of 7.5.1998, case C-118/96 Gomez Rodriguez, ECR [1998] I-2461.
(4) Ruling of 27.2.1997, case C-59/95 Bastos Moriana, ECR [1997] I-1071.

(2003/C 92 E/269) WRITTEN QUESTION E-2780/02


by Luigi Cocilovo (PPE-DE) to the Commission

(3 October 2002)

Subject: Medical treatment during a stay in a Member State other than that of residence. Articles 22 and 31
of Regulation (EEC) No 1408/71

According to Article 22 of Council Regulation (EEC) No 1408/71 (1) payment of the costs of medical and
hospital treatment carried out in another EU Member State is dependent on prior authorisation by the
competent insurance institution in the country of residence. As a rule this provision applies to all citizens,
according to conditions laid down in various Court of Justice judgments.

Article 31 of the same Regulation appears to make an exception for pensioners and annuity holders. If
they are staying in a Member State other than the one in which they reside but from which they receive a
pension or annuity, they are entitled to medical treatment in accordance with the legislation of the country
in which they are staying, whether or not it has been authorised by the insurance institution in the
country of residence.