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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.
C 92 E/210 Official Journal of the European Union EN 17.4.2003

Can the Commission confirm this interpretation of Article 31? In its answer, can it consider the case of a
citizen, resident in Italy, who receives a pension paid by both Belgium and Italy. If the pensioner, who has
travelled to Belgium to visit his children and has with him form E 111 rather than E 113 or E 121, needs
specialised treatment, is he authorised to receive it under the same terms as a pensioner resident in
Belgium, i.e. benefiting from the preferential refunds provided for pensioners?

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

Answer given by Mrs Diamantopoulou on behalf of the Commission

(15 November 2002)

The Commission would like to inform the Honourable Member that the Community Regulation to which
he refers, Regulation (EEC) No 1408/71 (1), contains a specific section on sickness and maternity benefits
and sets out three different situations in which health care may be obtained outside the Member State in
which the person has health care insurance:

 where the person is resident in another Member State (Articles 19 and 20 of Regulation (EEC)
No 1408/71 relate to workers, for example frontier workers, and Articles 27 to 30 of this Regulation
relate to pensioners);

 during a visit to another Member State for reasons other than medical (Article 22(1)(a) of Regulation
(EEC) No 1408/71 applies to workers and Article 31 of Regulation (EEC) No 1408/71 relates
specifically to pensioners);

 where a person goes to another Member State specifically to receive treatment (Article 22(1)(c) of
Regulation (EEC) No 1408/71). This provision applies to both workers and pensioners.

In principle, in these three situations, responsibility for the cost of health care received in a Member State
other than the State providing insurance is determined by the legislation of the State in which the
treatment has been provided (whether it is the country of residence or the country being visited).

The Honourable Member is comparing two different situations: he refers to the provisions of
Article 22(1)(c), which relates to the question of authorisation to go abroad for the purpose of receiving
medical care, and Article 31, which relates to pensioners staying temporarily in another Member State for
reasons other than medical care (for example holidays, family visits, etc.).

The provisions of Article 22(1)(c) of Regulation (EEC) No 1408/71 relating to workers (ruling of the Court
of Justice of the European Communities, 31 May 1979, in Case C-182/78 Pierik II) also apply to
pensioners wishing to travel abroad to receive health care. This means that pensioners, like workers, need
to obtain prior authorisation from the health insurance institution.

However, with regard to health care received during a visit for reasons other than medical care, a specific
provision in Article 31 of Regulation (EEC) No 1408/71 offers them better cover than that provided for
workers (Article 22(1)(a) of Regulation (EEC) No 1408/71).

In fact, Article 22(1)(a) of Regulation (EEC) No 1408/71 entitles most insured persons to emergency health
care, while pensioners visiting a Member State other than the State of residence, as tourists or for family or
other reasons, are entitled to all necessary treatment, emergency and other, during their stay in this State.

(1) Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to
employed persons and their families moving within the Community, OJ L 149, 5.7.1971.