2012/773/: Council Decision of 6 December 2012 on the position to be taken on behalf of the European Union within the Stabilisation and Association Council established by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, with regard to the adoption of provisions on the coordination of social security systems

• Articles: 17

Article 1

The position to be taken on behalf of the European Union within the Stabilisation and Association Council set up by the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part, with regard to the adoption of provisions on the coordination of social security systems, shall be based on the draft decision of the Stabilisation and Association Council attached to this Decision.

Minor changes to that draft decision may be agreed to by the representatives of the Union in the Stabilisation and Association Council without the need to adopt a further Council decision.

Article 1 Definitions

1.   For the purposes of this Decision:

(a)

‘Agreement’ means the Stabilisation and Association Agreement between the European Communities and their Member States, of the one part, and the Republic of Albania, of the other part;

(b)

‘Regulation’ means Regulation (EC) No 883/2004, as applicable in the Member States of the European Union;

(c)

‘implementing Regulation’ means Regulation (EC) No 987/2009;

(d)

‘Member State’ means a Member State of the European Union;

(e)

‘worker’ means:

(i)

for the purposes of the legislation of a Member State, a person pursuing an activity as an employed person within the meaning of Article 1(a) of the Regulation;

(ii)

for the purposes of the legislation of Albania, a person pursuing an activity as an employed person within the meaning of that legislation;

(f)

‘member of the family’ means:

(i)

for the purposes of the legislation of a Member State, a member of the family within the meaning of Article 1(i) of the Regulation;

(ii)

for the purposes of the legislation of Albania, a member of the family within the meaning of that legislation;

(g)

‘legislation’ means:

(i)

in relation to the Member States, legislation, within the meaning of Article 1(l) of the Regulation, as applicable to the benefits covered by this Decision;

(ii)

in relation to Albania, the legislation, as applicable in Albania, relating to the benefits covered by this Decision;

(h)

‘benefits’ means:

—

old-age pensions,

—

survivors’ pensions,

—

pensions in respect of accidents at work and occupational diseases,

—

invalidity pensions relating to accidents at work and occupational diseases,

—

family allowances;

(i)

‘exportable benefits’ means:

(i)

in relation to the Member States:

—

old-age pensions,

—

survivors’ pensions,

—

pensions in respect of accidents at work and occupational diseases,

—

invalidity pensions relating to accidents at work and occupational diseases,

within the meaning of the Regulation, with the exception of special non-contributory cash benefits as listed in Annex X to the Regulation;

(ii)

in relation to Albania, the corresponding benefits as provided for under the legislation of Albania, with the exception of special non-contributory cash benefits as set out in Annex I to this Decision.

2.   Other terms used in this Decision shall have the meaning which is assigned to them:

(a)

in relation to the Member States, in the Regulation and the implementing Regulation;

(b)

in relation to Albania, in the relevant legislation as applicable in Albania.

Article 2

This Decision shall enter into force on the date of its adoption.

Article 2 Persons covered

This Decision shall apply to:

(a)

workers who are Albanian nationals and who are, or have been, legally employed in the territory of a Member State and who are, or have been, subject to the legislation of one or more Member States, and their survivors;

(b)

the members of the family of workers referred to in point (a) provided that those family members are, or have been, legally resident with the worker concerned while the worker is employed in a Member State;

(c)

workers who are nationals of a Member State who are, or have been, legally employed in the territory of Albania and who are, or have been, subject to the legislation of Albania, and their survivors; and

(d)

the members of the family of workers referred to in point (c) provided that those family members are, or have been, legally resident with the worker concerned while the worker is employed in Albania.

Article 3 Equality of Treatment

1.   Workers who are Albanian nationals and are legally employed in a Member State and any members of their family legally residing with them shall enjoy, with regard to benefits within the meaning of Article 1(1)(h), treatment free from any discrimination based on nationality relative to nationals of the Member States in which those workers are employed.

2.   Workers who are nationals of a Member State and are legally employed in Albania and any members of their family legally residing with them shall enjoy, with regard to benefits within the meaning of Article 1(1)(h), treatment free from any discrimination based on nationality relative to Albanian nationals.

Article 4 Waiving of residence clauses

1.   Exportable benefits, within the meaning of Article 1(1)(i), to which the persons referred to in Article 2(a) and (c) are entitled, shall not be subject to any reduction, modification, suspension, withdrawal or confiscation on the grounds that the beneficiary resides:

(i)

for the purpose of benefits under the legislation of a Member State, within the territory of Albania; or

(ii)

for the purpose of benefits under the legislation of Albania, within the territory of a Member State.

2.   The members of the family of a worker referred to in Article 2(b) shall be are entitled to exportable benefits, within the meaning of Article 1(1)(i)(i), in the same way as the family members of a worker who is a national of the Member State concerned when those family members reside within the territory of Albania.

3.   The members of the family of a worker referred to in Article 2(d) shall be entitled to exportable benefits, within the meaning of Article 1(1)(i)(ii), in the same way as the family members of a worker who is a national of Albania when those family members reside within the territory of a Member State.

Article 5 Cooperation

1.   The Member States and Albania shall communicate to each other all information regarding changes in their legislation which may affect the implementation of this Decision.

2.   For the purposes of this Decision, the authorities and institutions of the Member States and of Albania shall lend one another their good offices and act as though implementing their own legislation. The administrative assistance given by those authorities and institutions shall, as a rule, be free of charge. However, the competent authorities of the Member States and of Albania may agree to certain expenses being reimbursed.

3.   The authorities and institutions of the Member States and of Albania may, for the purposes of this Decision, communicate directly with one another and with the persons involved or their representatives.

4.   The institutions and persons covered by this Decision shall have a duty of mutual information and cooperation to ensure the correct implementation of this Decision.

5.   The persons covered by this Decision shall inform the institutions of the competent Member State or of Albania, where the latter is the competent State, and of the Member State of residence or of Albania, where the latter is the State of residence, as soon as possible of any change in their personal or family situation which affects their right to benefits under this Decision.

6.   Failure to respect the obligation of information set out in paragraph 5 may result in the application of proportionate measures in accordance with national law. Nevertheless, those measures shall be equivalent to those applicable to similar situations under national law and they shall not make it impossible or excessively difficult in practice for claimants to exercise the rights conferred on them by this Decision.

7.   The Member States and Albania may provide for national provisions that establish conditions for the verification of entitlement to benefits in order to take into account the fact that the beneficiaries stay or reside outside the territory of the State where the debtor institution is located. Such provisions shall be proportionate, free from any discrimination based on nationality and shall be in accordance with the principles set out in this Decision. Such provisions shall be notified to the Stabilisation and Association Council.

Article 6 Administrative checks and medical examinations

1.   This Article shall apply to the persons as referred to in Article 2 and in receipt of exportable benefits within the meaning of Article 1(1)(i), as well as to the institutions in charge of the implementation of this Decision.

2.   Where a recipient or a claimant of benefits, or a member of that person’s family, stays or resides within the territory of a Member State when the debtor institution is located in Albania, or stays or resides within the territory of Albania when the debtor institution is located in a Member State, the medical examination shall be carried out, at the request of the debtor institution, by the institution of the beneficiary’s place of stay or residence, in accordance with the procedures laid down by the legislation applied by that institution.

The debtor institution shall inform the institution of the place of stay or residence of any special requirements, if necessary, to be followed and points to be covered by the medical examination.

The institution of the place of stay or residence shall forward a report to the debtor institution that requested the medical examination.

The debtor institution shall reserve the right to have the beneficiary examined by a doctor of its choice, either in the territory where the recipient or claimant of benefits stays or resides or in the country where the debtor institution is located. However, the beneficiary may be asked to return to the State of the debtor institution only where he or she is able to make the journey without prejudice to his or her health and where the cost of travel and accommodation is paid for by the debtor institution.

3.   Where a recipient or a claimant of benefits, or a member of that person’s family, stays or resides in the territory of a Member State when the debtor institution is located in Albania, or stays or resides in Albania when the debtor institution is located in a Member State, the administrative check shall, at the request of the debtor institution, be performed by the institution of the beneficiary’s place of stay or residence.

The institution of the place of stay or residence shall forward a report to the debtor institution that requested the administrative check.

The debtor institution shall reserve the right to have the situation of the beneficiary examined by a professional of its choice. However, the beneficiary may be asked to return to the State of the debtor institution only where he or she is able to make the journey without prejudice to his or her health and where the cost of travel and accommodation is paid for by the debtor institution.

4.   One or more Member States and Albania may agree on other administrative provisions, subject to their informing the Stabilisation and Association Council thereof.

5.   As an exception to the principle of free-of-charge mutual administrative assistance set out in Article 5(2) of this Decision, the effective amount of the expenses of the checks referred to in paragraphs 2 and 3 of this Article shall be refunded to the institution which was requested to carry them out by the debtor institution which requested them.

Article 7 Application of Article 126 of the Agreement

Article 126 of the Agreement shall apply in case either Party considers that the other Party has not complied with the obligations laid down in Articles 5 and 6.

Article 8 Special provisions for the application of the legislation of Albania

The Stabilisation and Association Council may, if necessary, lay down special provisions for the application of the legislation of Albania in Annex II to this Decision.

Article 9 Administrative procedures contained in existing bilateral agreements

Administrative procedures contained in existing bilateral agreements between a Member State and Albania may continue to apply provided that those procedures do not adversely affect the rights or obligations of the persons concerned, as set out in this Decision.

Article 10 Agreements supplementing the administrative procedures for implementing this Decision

One or more Member States and Albania may conclude agreements designed to supplement the administrative procedures for implementing this Decision, especially with regard to preventing and combating fraud and error.

Article 11 Transitional provisions

1.   No rights shall be acquired pursuant to this Decision for the period before its date of entry into force.

2.   Subject to paragraph 1, a right shall be acquired under this Decision even if it relates to a contingency arising before its date of entry into force.

3.   Any benefit which has not been awarded or which has been suspended by reason of the nationality or place of residence of the person concerned shall, at the request of that person, be provided or resumed with effect from the date of entry into force of this Decision, provided that the rights for which benefits were previously provided have not given rise to a lump-sum payment.

4.   If a request, as referred to in paragraph 3, is submitted within two years of the date of entry into force of this Decision, the rights acquired in accordance with this Decision shall have effect from that date, and the legislation of any Member State or Albania concerning the forfeiture or limitation of rights may not be invoked against the persons concerned.

5.   If a request, as referred to in paragraph 3, is submitted after the expiry of the two-year period referred to in paragraph 4, rights not forfeited or not time-barred shall have effect from the date on which the request was submitted, subject to any more favourable provisions under the legislation of any Member State or of Albania.

Article 12 Annexes to this Decision

1.   The Annexes to this Decision constitute an integral part thereof.

2.   At the request of Albania or of the European Union, the Annexes may be amended by a decision of the Stabilisation and Association Council.

Article 13 Entry into force

This Decision shall enter into force on the day following that of its publication in the Official Journal of the European Union .

Schedules & Appendices

ANNEX I

ANNEX I

LIST OF ALBANIAN SPECIAL NON-CONTRIBUTORY CASH BENEFITS

ANNEX II

ANNEX II

SPECIAL PROVISIONS FOR THE APPLICATION OF THE LEGISLATION OF ALBANIA