Regulation (EC) No 987/2009 of the European Parliament and of the CouncilDangos y teitl llawn

CHAPTER III U.K. Recovery of benefits provided but not due, recovery of provisional payments and contributions, offsetting and assistance with recovery

Section 1 U.K. Principles

Article 71 U.K. Common provisions

For the purposes of applying Article 84 of the basic Regulation and within the framework defined therein, the recovery of claims shall, wherever possible, be by way of offsetting either between the institutions of Member States concerned, or vis-à-vis the natural or legal person concerned in accordance with Articles 72 to 74 of the implementing Regulation. If it is not possible to recover all or any of the claim via this offsetting procedure, the remainder of the amount due shall be recovered in accordance with Articles 75 to 85 of the implementing Regulation.

Section 2 U.K. Offsetting

Article 72 U.K. Benefits received unduly

1. If the institution of a Member State has paid undue benefits to a person, that institution may, within the terms and limits laid down in the legislation it applies, request the institution of any other Member State responsible for paying benefits to the person concerned to deduct the undue amount from arrears or on-going payments owed to the person concerned regardless of the social security branch under which the benefit is paid. The institution of the latter Member State shall deduct the amount concerned subject to the conditions and limits applying to this kind of offsetting procedure in accordance with the legislation it applies in the same way as if it had made the overpayments itself, and shall transfer the amount deducted to the institution that has paid undue benefits.

2. By way of derogation from paragraph 1, if, when awarding or reviewing benefits in respect of invalidity benefits, old-age and survivors’ pensions pursuant to Chapter 4 and 5 of Title III of the basic Regulation, the institution of a Member State has paid to a person benefits of undue sum, that institution may request the institution of any other Member State responsible for the payment of corresponding benefits to the person concerned to deduct the amount overpaid from the arrears payable to the person concerned. After the latter institution has informed the institution that has paid an undue sum of these arrears, the institution which has paid the undue sum shall within two months communicate the amount of the undue sum. If the institution which is due to pay arrears receives that communication within the deadline it shall transfer the amount deducted to the institution which has paid undue sums. If the deadline expires, that institution shall without delay pay out the arrears to the person concerned.

3. If a person has received social welfare assistance in one Member State during a period in which he was entitled to benefits under the legislation of another Member State, the body which provided the assistance may, if it is legally entitled to reclaim the benefits due to the person concerned, request the institution of any other Member State responsible for paying benefits in favour of the person concerned to deduct the amount of assistance paid from the amounts which that Member State pays to the person concerned.

This provision shall apply mutatis mutandis to any family member of a person concerned who has received assistance in the territory of a Member State during a period in which the insured person was entitled to benefits under the legislation of another Member State in respect of that family member.

The institution of a Member State which has paid an undue amount of assistance shall send a statement of the amount due to the institution of the other Member State, which shall then deduct the amount, subject to the conditions and limits laid down for this kind of offsetting procedure in accordance with the legislation it applies, and transfer the amount without delay to the institution that has paid the undue amount.

Article 73 U.K. Provisionally paid benefits in cash or contributions

1. For the purposes of applying Article 6 of the implementing Regulation, at the latest three months after the applicable legislation has been determined or the institution responsible for paying the benefits has been identified, the institution which provisionally paid the cash benefits shall draw up a statement of the amount provisionally paid and shall send it to the institution identified as being competent.

The institution identified as being competent for paying the benefits shall deduct the amount due in respect of the provisional payment from the arrears of the corresponding benefits it owes to the person concerned and shall without delay transfer the amount deducted to the institution which provisionally paid the cash benefits.

If the amount of provisionally paid benefits exceeds the amount of arrears, or if arrears do not exist, the institution identified as being competent shall deduct this amount from ongoing payments subject to the conditions and limits applying to this kind of offsetting procedure under the legislation it applies, and without delay transfer the amount deducted to the institution which provisionally paid the cash benefits.

2. The institution which has provisionally received contributions from a legal and/or natural person shall not reimburse the amounts in question to the person who paid them until it has ascertained from the institution identified as being competent the sums due to it under Article 6(4) of the implementing Regulation.

Upon request of the institution identified as being competent, which shall be made at the latest three months after the applicable legislation has been determined, the institution that has provisionally received contributions shall transfer them to the institution identified as being competent for that period for the purpose of settling the situation concerning the contributions owed by the legal and/or natural person to it. The contributions transferred shall be retroactively deemed as having been paid to the institution identified as being competent.

If the amount of provisionally paid contributions exceeds the amount the legal and/or natural person owes to the institution identified as being competent, the institution which provisionally received contributions shall reimburse the amount in excess to the legal and/or natural person concerned.

Article 74 U.K. Costs related to offsetting

No costs are payable where the debt is recovered via the offsetting procedure provided for in Articles 72 and 73 of the implementing Regulation.

Section 3 U.K. Recovery

Article 75 U.K. Definitions and common provisions

1. For the purposes of this Section:

• ‘claim’ means all claims relating to contributions or to benefits paid or provided unduly, including interest, fines, administrative penalties and all other charges and costs connected with the claim in accordance with the legislation of the Member State making the claim;

• ‘applicant party’ means, in respect of each Member State, any institution which makes a request for information, notification or recovery concerning a claim as defined above,

• ‘requested party’ means, in respect of each Member State, any institution to which a request for information, notification or recovery can be made,

2. Requests and any related communications between the Member States shall, in general, be addressed via designated institutions.

3. Practical implementation measures, including, among others, those related to Article 4 of the implementing Regulation and to setting a minimum threshold for the amounts for which a request for recovery can be made, shall be taken by the Administrative Commission.

Article 76 U.K. Requests for information

1. At the request of the applicant party, the requested party shall provide any information which would be useful to the applicant party in the recovery of its claim.

In order to obtain that information, the requested party shall make use of the powers provided for under the laws, regulations or administrative provisions applying to the recovery of similar claims arising in its own Member State.

2. The request for information shall indicate the name, last known address, and any other relevant information relating to the identification of the legal or natural person concerned to whom the information to be provided relates and the nature and amount of the claim in respect of which the request is made.

3. The requested party shall not be obliged to supply information:

(a) which it would not be able to obtain for the purpose of recovering similar claims arising in its own Member State;

(b) which would disclose any commercial, industrial or professional secrets; or

(c) the disclosure of which would be liable to prejudice the security of or be contrary to the public policy of the Member State.

4. The requested party shall inform the applicant party of the grounds for refusing a request for information.

Article 77 U.K. Notification

1. The requested party shall, at the request of the applicant party, and in accordance with the rules in force for the notification of similar instruments or decisions in its own Member State, notify the addressee of all instruments and decisions, including those of a judicial nature, which come from the Member State of the applicant party and which relate to a claim and/or to its recovery.

2. The request for notification shall indicate the name, address and any other relevant information relating to the identification of the addressee concerned to which the applicant party normally has access, the nature and the subject of the instrument or decision to be notified and, if necessary the name, address and any other relevant information relating to the identification of the debtor and the claim to which the instrument or decision relates, and any other useful information.

3. The requested party shall without delay inform the applicant party of the action taken on its request for notification and, particularly, of the date on which the decision or instrument was forwarded to the addressee.

Article 78 U.K. Request for recovery

1. The request for recovery of a claim, addressed by the applicant party to the requested party, shall be accompanied by an official or certified copy of the instrument permitting its enforcement, issued in the Member State of the applicant party and, if appropriate, by the original or a certified copy of other documents necessary for recovery.

2. The applicant party may only make a request for recovery if:

(a) the claim and/or the instrument permitting its enforcement are not contested in its own Member State, except in cases where the second subparagraph of Article 81(2) of the implementing Regulation is applied;

(b) it has, in its own Member State, applied appropriate recovery procedures available to it on the basis of the instrument referred to in paragraph 1, and the measures taken will not result in the payment in full of the claim;

(c) the period of limitation according to its own legislation has not expired.

3. The request for recovery shall indicate:

(a) the name, address and any other relevant information relating to the identification of the natural or legal person concerned and/or to the third party holding his or her assets;

(b) the name, address and any other relevant information relating to the identification of the applicant party;

(c) a reference to the instrument permitting its enforcement, issued in the Member State of the applicant party;

(d) the nature and amount of the claim, including the principal, the interest, fines, administrative penalties and all other charges and costs due indicated in the currencies of the Member States of the applicant and requested parties;

(e) the date of notification of the instrument to the addressee by the applicant party and/or by the requested party;

(f) the date from which and the period during which enforcement is possible under the laws in force in the Member State of the applicant party;

(g) any other relevant information.

4. The request for recovery shall also contain a declaration by the applicant party confirming that the conditions laid down in paragraph 2 have been fulfilled.

5. The applicant party shall forward to the requesting party any relevant information relating to the matter which gave rise to the request for recovery, as soon as this comes to its knowledge.

Article 79 U.K. Instrument permitting enforcement of the recovery

1. In accordance with Article 84(2) of the basic Regulation, the instrument permitting enforcement of the claim shall be directly recognised and treated automatically as an instrument permitting the enforcement of a claim of the Member State of the requested party.

2. Notwithstanding paragraph 1, the instrument permitting enforcement of the claim may, where appropriate and in accordance with the provisions in force in the Member State of the requested party, be accepted as, recognised as, supplemented with, or replaced by an instrument authorising enforcement in the territory of that Member State.

Within three months of the date of receipt of the request for recovery, Member States shall endeavour to complete the acceptance, recognition, supplementing or replacement, except in cases where the third subparagraph of this paragraph applies. Member States may not refuse to complete these actions where the instrument permitting enforcement is properly drawn up. The requested party shall inform the applicant party of the grounds for exceeding the three-month period.

If any of these actions should give rise to a dispute in connection with the claim and/or the instrument permitting enforcement issued by the applicant party, Article 81 of the implementing Regulation shall apply.

Article 80 U.K. Payment arrangements and deadlines

1. Claims shall be recovered in the currency of the Member State of the requested party. The entire amount of the claim that is recovered by the requested party shall be remitted by the requested party to the applicant party.

2. The requested party may, where the laws, regulations or administrative provisions in force in its own Member State so permit, and after consulting the applicant party, allow the debtor time to pay or authorise payment by instalment. Any interest charged by the requested party in respect of such extra time to pay shall also be remitted to the applicant party.

From the date on which the instrument permitting enforcement of the recovery of the claim has been directly recognised in accordance with Article 79(1) of the implementing Regulation, or accepted, recognised, supplemented or replaced in accordance with Article 79(2) of the implementing Regulation, interest shall be charged for late payment under the laws, regulations and administrative provisions in force in the Member State of the requested party and shall also be remitted to the applicant party.

Article 81 U.K. Contestation concerning the claim or the instrument permitting enforcement of its recovery and contestation concerning enforcement measures

1. If, in the course of the recovery procedure, the claim and/or the instrument permitting its enforcement issued in the Member State of the applicant party are contested by an interested party, the action shall be brought by this party before the appropriate authorities of the Member State of the applicant party, in accordance with the laws in force in that Member State. The applicant party shall without delay notify the requested party of this action. The interested party may also inform the requested party of the action.

2. As soon as the requested party has received the notification or information referred to in paragraph 1 either from the applicant party or from the interested party, it shall suspend the enforcement procedure pending the decision of the appropriate authority in the matter, unless the applicant party requests otherwise in accordance with the second subparagraph of this paragraph. Should the requested party deem it necessary, and without prejudice to Article 84 of the implementing Regulation, it may take precautionary measures to guarantee recovery insofar as the laws or regulations in force in its own Member State allow such action for similar claims.

Notwithstanding the first subparagraph, the applicant party may, in accordance with the laws, regulations and administrative practices in force in its own Member State, request the requested party to recover a contested claim, in so far as the relevant laws, regulations and administrative practices in force in the requested party’s Member State allow such action. If the result of the contestation is subsequently favourable to the debtor, the applicant party shall be liable for the reimbursement of any sums recovered, together with any compensation due, in accordance with the legislation in force in the requested party’s Member State.

3. Where the contestation concerns enforcement measures taken in the Member State of the requested party, the action shall be brought before the appropriate authority of that Member State in accordance with its laws and regulations.

4. Where the appropriate authority before which the action is brought in accordance with paragraph 1 is a judicial or administrative tribunal, the decision of that tribunal, insofar as it is favourable to the applicant party and permits recovery of the claim in the Member State of the applicant party, shall constitute the ‘instrument permitting enforcement’ within the meaning of Articles 78 and 79 of the implementing Regulation and the recovery of the claim shall proceed on the basis of that decision.

Article 82 U.K. Limits applying to assistance

1. The requested party shall not be obliged:

(a) to grant the assistance provided for in Articles 78 to 81 of the implementing Regulation if recovery of the claim would, because of the situation of the debtor, create serious economic or social difficulties in the Member State of the requested party, insofar as the laws, regulations or administrative practices in force in the Member State of the requested party allow such action for similar national claims;

(b) to grant the assistance provided for in Articles 76 to 81 of the implementing Regulation, if the initial request under Articles 76 to 78 of the implementing Regulation applies to claims more than five years old, dating from the moment the instrument permitting the recovery was established in accordance with the laws, regulations or administrative practices in force in the Member State of the applicant party at the date of the request. However, if the claim or instrument is contested, the time limit begins from the moment that the Member State of the applicant party establishes that the claim or the enforcement order permitting recovery may no longer be contested.

2. The requested party shall inform the applicant party of the grounds for refusing a request for assistance.

Article 83 U.K. Periods of limitation

1. Questions concerning periods of limitation shall be governed as follows:

(a) by the laws in force in the Member State of the applicant party, insofar as they concern the claim and/or the instrument permitting its enforcement; and

(b) by the laws in force in the Member State of the requested party, insofar as they concern enforcement measures in the requested Member State.

Periods of limitation according to the laws in force in the Member State of the requested party shall start from the date of direct recognition or from the date of acceptance, recognition, supplementing or replacement in accordance with Article 79 of the implementing Regulation.

2. Steps taken in the recovery of claims by the requested party in pursuance of a request for assistance, which, if they had been carried out by the applicant party, would have had the effect of suspending or interrupting the period of limitation according to the laws in force in the Member State of the applicant party, shall be deemed to have been taken in the latter State, in so far as that effect is concerned.

Article 84 U.K. Precautionary measures

Upon reasoned request by the applicant party, the requested party shall take precautionary measures to ensure recovery of a claim in so far as the laws and regulations in force in the Member State of the requested party so permit.

For the purposes of implementing the first paragraph, the provisions and procedures laid down in Articles 78, 79, 81 and 82 of the implementing Regulation shall apply mutatis mutandis.

Article 85 U.K. Costs related to recovery

1. The requested party shall recover from the natural or legal person concerned and retain any costs linked to recovery which it incurs, in accordance with the laws and regulations of the Member State of the requested party that apply to similar claims.

2. Mutual assistance afforded under this Section shall, as a rule, be free of charge. However, where recovery poses a specific problem or concerns a very large amount in costs, the applicant and the requested parties may agree on reimbursement arrangements specific to the cases in question.

3. The Member State of the applicant party shall remain liable to the Member State of the requested party for any costs and any losses incurred as a result of actions held to be unfounded, as far as either the substance of the claim or the validity of the instrument issued by the applicant party is concerned.

Article 86 U.K. Review clause

1. No later than the fourth full calendar year after the entry into force of the implementing Regulation, the Administrative Commission shall present a comparative report on the time limits set out in Article 67(2), (5) and (6) of the implementing Regulation.

On the basis of this report, the European Commission may, as appropriate, submit proposals to review these time limits with the aim of reducing them in a significant way.

2. No later than the date referred to in paragraph 1, the Administrative Commission shall also assess the rules for conversion of periods set out in Article 13 with a view to simplifying those rules, if possible.

3. No later than 1 May 2015, the Administrative Commission shall present a report specifically assessing the application of Chapters I and III of Title IV of the implementing Regulation, in particular with regard to the procedures and time limits referred to in Article 67(2), (5) and (6) of the implementing Regulation and to the recovery procedures referred to in Articles 75 to 85 of the implementing Regulation.

In the light of this report, the European Commission may, if necessary, submit appropriate proposals to make these procedures more efficient and balanced.