61985J0197

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1 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS - ENTITLEMENT ARISING SOLELY UNDER NATIONAL LEGISLATION - APPLICABILITY - LIMITS - COMMUNITY RULES MORE FAVOURABLE TO WORKERS

( REGULATION NO 1408/71 OF THE COUNCIL, ARTS 12*(2 ) AND 46 )

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS - NOT CAPABLE OF BEING RELIED UPON AS AGAINST RECIPIENTS OF BENEFITS OF THE SAME KIND CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF REGULATION NO 1408/71 - BENEFITS OF THE SAME KIND - CRITERIA - PERSONAL INVALIDITY PENSION AND SURVIVOR' S PENSION - BENEFITS OF A DIFFERENT KIND

( REGULATION NO 1408/71 OF THE COUNCIL, ARTS 12*(2 ) AND 46 )

3 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS - CLASSIFICATION OF AN INVALIDITY PENSION GRANTED BY ONE MEMBER STATE WITH REGARD TO THE LEGISLATION OF ANOTHER MEMBER STATE - QUESTION GOVERNED BY NATIONAL LAW

4 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS - DETAILED RULES OF APPLICATION - ARTICLE 7 ( 1 ) ( B ) OF REGULATION NO 574/72 - APPLICATION TO THE OVERLAPPING OF A SURVIVOR' S PENSION WITH A PENSION OF A DIFFERENT KIND TO WHICH ENTITLEMENT WAS ACQUIRED IN ANOTHER MEMBER STATE

( REGULATION NO 574/72 OF THE COUNCIL, ART . 7*(1)*(B )*)

1 . WHEN A WORKER RECEIVES A PENSION PURSUANT TO NATIONAL LEGISLATION ALONE, THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THAT LEGISLATION FROM BEING APPLIED TO HIM IN ITS ENTIRETY, INCLUDING THE NATIONAL RULES AGAINST OVERLAPPING BENEFITS . THAT PRINCIPLE ALSO APPLIES IN THE CASE OF THE WORKER' S SURVIVORS WHO CLAIM A SURVIVOR' S PENSION . HOWEVER, IF THE APPLICATION OF NATIONAL LEGISLATION ALONE PROVES TO BE LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE RULES LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71, THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED .

2 . SOCIAL SECURITY BENEFITS MUST BE REGARDED AS BEING OF THE SAME KIND, FOR THE PURPOSES OF THE FINAL SENTENCE OF ARTICLE 12*(2 ) OF REGULATION NO 1408/71, WHEN THEIR PURPOSE AND OBJECT AS WELL AS THE BASIS ON WHICH THEY ARE CALCULATED AND THE CONDITIONS FOR GRANTING THEM ARE IDENTICAL . THAT REQUIREMENT IS NOT SATISFIED WHEN THE BENEFITS ARE LINKED TO DIFFERENT INSURANCE RECORDS AND, CONSEQUENTLY, TO DIFFERENT INSURANCE PERIODS; THAT IS THE CASE WITH, ON THE ONE HAND, A PERSONAL INVALIDITY PENSION WHICH IS BASED ON THE RECIPIENT' S OWN EMPLOYMENT RECORD IN ONE MEMBER STATE AND, ON THE OTHER, A SURVIVOR' S PENSION BASED ON THE EMPLOYMENT RECORD OF THE RECIPIENT' S DECEASED HUSBAND IN ANOTHER MEMBER STATE . AS THE FINAL SENTENCE OF ARTICLE 12*(2 ) OF REGULATION NO 1408/71 IS NOT APPLICABLE, THE NATIONAL RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS MAY THEREFORE, ACCORDING TO THE FIRST SENTENCE OF ARTICLE 12*(2 ), ALSO BE RELIED UPON AGAINST A PERSON RECEIVING BENEFITS UNDER THE RULES LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71 .

3 . THE CLASSIFICATION, FOR THE PURPOSES OF THE ANTI-OVERLAPPING RULES APPLIED BY A MEMBER STATE PROVIDING A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECOMES ENTITLED UNDER THE LEGISLATION OF THAT MEMBER STATE ALONE, OF AN INVALIDITY PENSION PAID BY ANOTHER MEMBER STATE, IS NOT GOVERNED BY COMMUNITY LAW BUT BY NATIONAL LAW ALONE .

4 . THE PROVISIONS OF ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72 ARE APPLICABLE TO THE OVERLAPPING OF A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE WITH A PENSION OF A DIFFERENT KIND ( AN INVALIDITY OR OLD-AGE PENSION ) TO WHICH ENTITLEMENT WAS ACQUIRED SOLELY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE PROVES IN THE END TO BE LESS FAVOURABLE TO THE RECIPIENT .

IN CASE 197/85

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE COUR DU TRAVAIL ( LABOUR COURT ), MONS, FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES ( ONPTS ) ( NATIONAL PENSIONS OFFICE FOR EMPLOYED PERSONS )

AND

DOMENICA STEFANUTTI

ON THE INTERPRETATION OF ARTICLES 48 AND 51 OF THE EEC TREATY AND OF ARTICLE 12 OF 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 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF ARTICLE 7*(1)*(B ) OF

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REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS AND THEIR FAMILIES MOVING WITHIN THE COMMUNITY ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ),

THE COURT ( SECOND CHAMBER )

COMPOSED OF : T . F . O' HIGGINS, PRESIDENT OF THE CHAMBER, O . DUE AND K . BAHLMANN, JUDGES,

ADVOCATE GENERAL : C . O . LENZ

EGISTRAR : D . LOUTERMAN, ADMINISTRATOR

AFTER CONSIDERING THE OBSERVATIONS SUBMITTED ON BEHALF OF

THE ONPTS, BY R . MASYN AND J . PELTOT,

MRS STEFANUTTI, BY D . ROSSINI,

THE ITALIAN REPUBLIC, BY P . G . FERRI, AVVOCATO DELLO STATO, ACTING AS AGENT,

THE COMMISSION OF THE EUROPEAN COMMUNITIES, BY J . GRIESMAR, ACTING AS AGENT,

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HAVING REGARD TO THE REPORT FOR THE HEARING AND FURTHER TO THE HEARING ON 18 MARCH 1987,

AFTER HEARING THE OPINION OF THE ADVOCATE GENERAL DELIVERED AT THE SITTING ON 10 JUNE 1987,

GIVES THE FOLLOWING

JUDGMENT

1 BY A JUDGMENT OF 21 JUNE 1985, WHICH WAS RECEIVED AT THE COURT ON 26 JUNE 1985, THE COUR DU TRAVAIL, MONS, REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY FOUR QUESTIONS CONCERNING THE INTERPRETATION OF ARTICLES 48 AND 51 OF THE EEC TREATY, OF ARTICLE 12 OF REGULATION 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 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72 OF THE COMMISSION OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION NO 1408/71 ( OFFICIAL JOURNAL, ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ) IN ORDER TO BE ABLE TO CLASSIFY AN ITALIAN INVALIDITY PENSION FOR THE PURPOSES OF APPLYING BELGIAN RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS .

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2 THE QUESTIONS WERE RAISED IN PROCEEDINGS BETWEEN MRS STEFANUTTI, AN ITALIAN NATIONAL RESIDING IN ITALY WHO RECEIVES IN HER OWN RIGHT AN ITALIAN INVALIDITY PENSION, AND THE OFFICE NATIONAL DES PENSIONS POUR TRAVAILLEURS SALARIES, THE BELGIAN INSURANCE ORGANIZATION ( HEREINAFTER REFERRED TO AS "THE ONPTS "), WHICH REFUSED TO GRANT HER A SURVIVOR' S PENSION FOLLOWING THE DEATH IN FEBRUARY 1977 OF HER HUSBAND, WHO HAD WORKED IN BELGIUM FOR ALMOST 18 YEARS AND IN ITALY FOR ALMOST 15 YEARS .

3 THAT DECISION, BASED ON A BELGIAN RULE FOR PREVENTING THE OVERLAPPING OF BENEFITS WHICH PROVIDES THAT A SURVIVOR' S PENSION IS NOT PAYABLE TO THE RECIPIENT OF A BELGIAN OR FOREIGN INVALIDITY PENSION, WAS LIMITED TO THE PERIOD FROM 1 FEBRUARY 1977 TO 1 APRIL 1979 DURING WHICH TIME, HOWEVER, MRS STEFANUTTI WAS PAID AN "ADAPTATION ALLOWANCE ". FROM 1 APRIL 1979, AFTER MRS STEFANUTTI REACHED 60 YEARS OF AGE, SHE WAS GRANTED THE SURVIVOR' S PENSION APPLIED FOR BECAUSE IN BELGIUM, IN THE CASE OF WOMEN REACHING PENSIONABLE AGE, WHICH IS FIXED AT 60 YEARS IN THAT MEMBER STATE, AN INVALIDITY PENSION IS REGARDED AS TAKING THE PLACE OF AN OLD-AGE PENSION AND SUCH AN OLD-AGE PENSION MAY, IN PRINCIPLE, OVERLAP WITH A SURVIVOR' S PENSION . HOWEVER, THE ONPTS APPLIED A DIFFERENT ANTI-OVERLAPPING RULE OF BELGIAN LAW WHICH PERMITS SUCH OVERLAPPING ONLY UP TO AN AMOUNT EQUIVALENT TO 110% OF THE AMOUNT OF THE SURVIVOR' S PENSION GRANTED .

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4 MRS STEFANUTTI THEREUPON BROUGHT AN ACTION BEFORE THE TRIBUNAL DU TRAVAIL ( LABOUR TRIBUNAL ), CHARLEROI . SHE CLAIMED THAT SHE WAS ENTITLED TO A BELGIAN SURVIVOR' S PENSION AS FROM FEBRUARY 1977 BECAUSE HER ITALIAN INVALIDITY PENSION, WHICH WAS NOT CONVERTIBLE INTO AN OLD-AGE PENSION, HAD TO BE REGARDED AS BEING OF THE SAME KIND AS AN OLD-AGE PENSION SO THAT THE FIRST ANTI-OVERLAPPING RULE MENTIONED ABOVE COULD NOT BE APPLIED . THE TRIBUNAL DU TRAVAIL DECLARED THE APPLICATION WELL FOUNDED ON THAT POINT BUT STATED THAT THE ( BELGIAN ) SURVIVOR' S PENSION AND THE ( ITALIAN ) INVALIDITY PENSION ASSIMILATED TO AN OLD-AGE PENSION WERE BY THEIR NATURE DIFFERENT SO THAT, IN ACCORDANCE WITH ARTICLE 12 OF REGULATION NO 1408/71, THEY COULD OVERLAP ONLY UP TO THE LIMIT SET BY THE SECOND ANTI-OVERLAPPING RULE MENTIONED ABOVE .

5 BOTH THE ONPTS AND MRS STEFANUTTI APPEALED AGAINST THAT JUDGMENT TO THE COUR DU TRAVAIL, MONS . THE ONPTS ARGUED THAT THE INVALIDITY PENSION COULD NOT BE REGARDED AS AN OLD-AGE PENSION UNTIL MRS STEFANUTTI HAD REACHED 60 YEARS OF AGE WHILST MRS STEFANUTTI TOOK THE VIEW THAT, UNDER ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72, HER ITALIAN PENSION COULD BE TAKEN INTO ACCOUNT, IN THE CALCULATION MADE IN ACCORDANCE WITH COMMUNITY LAW, ONLY IN PROPORTION TO THE INSURANCE PERIOD COMPLETED IN BELGIUM BY HER DECEASED HUSBAND FOR THE PURPOSES OF THE OVERLAP WITH THE SURVIVOR' S PENSION AND THAT SHE WAS ENTITLED TO

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THE MOST FAVOURABLE SURVIVOR' S PENSION BETWEEN THAT ARISING UNDER THE NATIONAL RULES OF CALCULATION AND THAT RESULTING FROM THE CALCULATION MADE UNDER COMMUNITY LAW .

6 IT WAS IN THOSE CIRCUMSTANCES THAT THE COUR DU TRAVAIL, MONS, REFERRED THE FOLLOWING QUESTIONS TO THE COURT FOR A PRELIMINARY RULING :

"( 1 ) WHERE THE WIDOW OF A MIGRANT WORKER HAS BECOME ENTITLED TO A PERSONAL INVALIDITY PENSION IN ONE MEMBER STATE WITHOUT APPLICATION OF THE COMMUNITY REGULATIONS AND CLAIMS A SURVIVOR' S BENEFIT IN ANOTHER MEMBER STATE ON THE BASIS OF HER HUSBAND' S EMPLOYMENT, AGAIN WITHOUT APPLICATION OF THE COMMUNITY REGULATIONS, IS IT COMPATIBLE WITH ARTICLES 48 AND 51 OF THE EEC TREATY THAT THE INSTITUTION OF THE SECOND STATE WHICH GRANTS THE SURVIVOR' S PENSION SHOULD TAKE INTO ACCOUNT, IN APPLYING THE RULES LAID DOWN IN ITS OWN LEGISLATION FOR PREVENTING THE OVERLAPPING OF BENEFITS, THE INVALIDITY PENSION GRANTED BY THE FIRST STATE IN THE SAME WAY AS IT TAKES INTO ACCOUNT INVALIDITY BENEFITS GRANTED UNDER ITS OWN LEGISLATION?

( 2 ) IF THE ANSWER TO THE FIRST QUESTION IS IN THE AFFIRMATIVE, HOW MUST THE INVALIDITY PENSION GRANTED BY ANOTHER MEMBER STATE, WHICH IS NOT CONVERTIBLE INTO AN OLD-AGE PENSION, BE TREATED IF THE LEGISLATION OF A MEMBER STATE TREATS THE OVERLAPPING OF THE SURVIVOR' S PENSION GRANTED BY THAT STATE WITH AN INVALIDITY BENEFIT OR OLD-AGE BENEFIT DIFFERENTLY : MUST IT BE TREATED AS AN INVALIDITY BENEFIT OR AS AN OLD-AGE BENEFIT? SHOULD A DISTINCTION POSSIBLY BE MADE ACCORDING TO WHETHER OR

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NOT THE RECIPIENT OF THE INVALIDITY PENSION HAS REACHED RETIREMENT AGE OR IS RECEIVING AN OLD-AGE BENEFIT?

( 3 ) SHOULD THAT RETIREMENT AGE BE THE AGE LAID DOWN IN THE LEGISLATION WHICH INCLUDES THE PROVISION RELATING TO OVERLAPPING BENEFITS OR THE AGE LAID DOWN IN THE LEGISLATION GOVERNING THE UNCONVERTIBLE BENEFIT, THE OVERLAPPING OF WHICH WITH ANOTHER BENEFIT IS REGULATED?

( 4 ) IS ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72 APPLICABLE TO THE OVERLAPPING OF AN INDIRECT PENSION ( A SURVIVOR' S PENSION ) WITH A DIRECT PENSION OF A DIFFERENT KIND ( INVALIDITY OR OLD-AGE PENSION )?"

7 REFERENCE IS MADE TO THE REPORT FOR THE HEARING FOR A FULLER ACCOUNT OF THE FACTS, THE RELEVANT LEGAL PROVISIONS AND THE WRITTEN OBSERVATIONS SUBMITTED TO THE COURT, WHICH ARE MENTIONED OR DISCUSSED HEREINAFTER ONLY IN SO FAR AS IS NECESSARY FOR THE REASONING OF THE COURT .

THE FIRST QUESTION

8 BEFORE CONSIDERING THE FIRST QUESTION IT IS NECESSARY TO POINT OUT THAT IN SOCIAL SECURITY MATTERS ARTICLES 48 TO 51 OF THE EEC TREATY FORM THE BASIS AND FRAMEWORK FOR THE REGULATIONS ADOPTED TO GIVE EFFECT TO THOSE PROVISIONS . REGULATION NO 1408/71 IS ONE OF THOSE REGULATIONS .

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9 BY ITS FIRST QUESTION THE COUR DU TRAVAIL SEEKS TO ASCERTAIN IN ESSENCE WHETHER IN A CASE WHERE THE WIDOW OF A MIGRANT WORKER HAS BECOME ENTITLED TO A PERSONAL INVALIDITY PENSION UNDER THE LEGISLATION OF A SINGLE MEMBER STATE AND IN ANOTHER MEMBER STATE CLAIMS A SURVIVOR' S PENSION TO WHICH SHE HAS BECOME ENTITLED UNDER THE LEGISLATION OF THAT MEMBER STATE ALONE, REGULATION NO 1408/71 PRECLUDES THE APPLICATION OF THE LATTER STATE' S ANTI-OVERLAPPING RULES, WHICH ALSO COVER FOREIGN BENEFITS, TO THE OVERLAPPING OF THOSE PENSIONS .

10 IN THAT REGARD, IT MUST BE POINTED OUT THAT THE COURT HAS CONSISTENTLY HELD THAT WHEN A WORKER RECEIVES A PENSION PURSUANT TO NATIONAL LEGISLATION ALONE, THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THAT LEGISLATION FROM BEING APPLIED TO HIM IN ITS ENTIRETY, INCLUDING THE NATIONAL RULES AGAINST OVERLAPPING BENEFITS ( JUDGMENT OF 5 MAY 1983 IN CASE 238/81 RAAD VAN ARBEID V VAN DER BUNT-CRAIG (( 1983 )) ECR 1385 ). THAT ALSO APPLIES IN THE CASE OF THE WORKER' S SURVIVORS WHO CLAIM A SURVIVOR' S PENSION .

11 IT MUST BE NOTED, HOWEVER, THAT THE COURT HAS ALSO CONSISTENTLY HELD THAT IF THE APPLICATION OF NATIONAL LEGISLATION ALONE PROVES TO BE LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE RULES LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71, THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED ( JUDGMENT OF 2 JULY 1981 IN JOINED CASES 116, 117 AND 119 TO 121/80 RIJKSDIENST VOOR WERKNEMERSPENSIOENEN V CELESTRE AND OTHERS (( 1981 )) ECR 1737 ).

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12 AS REGARDS THE APPLICATION OF THE PROVISIONS OF ARTICLE 46, IT MUST BE OBSERVED THAT IT FOLLOWS FROM THE FINAL SENTENCE OF ARTICLE 12*(2 ) OF REGULATION NO 1408/71 THAT PROVISIONS OF THE LEGISLATION OF A MEMBER STATE FOR REDUCTION, SUSPENSION OR WITHDRAWAL OF BENEFIT IN THE EVENT OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS ARE NOT APPLICABLE WHEN THE PERSON CONCERNED RECEIVES BENEFITS OF THE SAME KIND IN RESPECT OF INVALIDITY, OLD AGE OR DEATH . IN THAT CONNECTION, SOCIAL SECURITY BENEFITS MUST BE REGARDED, AS THE COURT HAS CONSISTENTLY HELD ( SEE THE JUDGMENT OF 5 JULY 1983 IN CASE 171/82 VALENTINI V ASSOCIATION POUR L' EMPLOI DANS L' INDUSTRIE ET LE COMMERCE (( 1983 )) ECR 2157 ), AS BEING OF THE SAME KIND WHEN THEIR PURPOSE AND OBJECT AS WELL AS THE BASIS ON WHICH THEY ARE CALCULATED AND THE CONDITIONS FOR GRANTING THEM ARE IDENTICAL .

13 IT IS SUFFICIENT TO OBSERVE IN THIS REGARD THAT THAT REQUIREMENT CANNOT IN ANY EVENT BE SATISFIED WHEN THE BENEFITS ARE LINKED TO DIFFERENT INSURANCE RECORDS AND, CONSEQUENTLY, TO DIFFERENT INSURANCE PERIODS; THAT IS THE CASE WITH, ON THE ONE HAND, A PERSONAL INVALIDITY PENSION WHICH IS BASED ON THE RECIPIENT' S OWN EMPLOYMENT RECORD IN ONE MEMBER STATE AND, ON THE OTHER, A SURVIVOR' S PENSION BASED ON THE EMPLOYMENT RECORD OF THE RECIPIENT' S DECEASED HUSBAND IN ANOTHER MEMBER STATE . AS THE FINAL SENTENCE OF ARTICLE 12*(2 ) OF REGULATION NO 1408/71 IS NOT APPLICABLE, THE NATIONAL RULES FOR PREVENTING THE OVERLAPPING OF BENEFITS MAY THEREFORE, ACCORDING TO THE FIRST SENTENCE

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OF ARTICLE 12*(2 ), ALSO BE RELIED UPON AGAINST A PERSON RECEIVING BENEFITS UNDER THE RULES LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71 .

14 THE REPLY TO THE FIRST QUESTION MUST THEREFORE BE THAT WHERE THE WIDOW OF A MIGRANT WORKER HAS BECOME ENTITLED TO AN INVALIDITY PENSION IN HER OWN RIGHT UNDER THE LEGISLATION OF A SINGLE MEMBER STATE AND IN ANOTHER MEMBER STATE CLAIMS A SURVIVOR' S PENSION TO WHICH SHE HAS BECOME ENTITLED UNDER THE LEGISLATION OF THAT MEMBER STATE ALONE, REGULATION NO 1408/71 DOES NOT PRECLUDE THE APPLICATION OF THE LATTER MEMBER STATE' S RULES FOR PREVENTING THE OVERLAPPING OF NATIONAL AND FOREIGN BENEFITS .

THE SECOND AND THIRD QUESTIONS

15 THE SECOND AND THIRD QUESTIONS RELATE SOLELY TO THE QUESTION OF THE CLASSIFICATION, FOR THE PURPOSES OF THE ANTI-OVERLAPPING RULES APPLIED BY A MEMBER STATE PROVIDING A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED SOLELY UNDER THE LEGISLATION OF THAT STATE, OF AN INVALIDITY PENSION PAID BY ANOTHER MEMBER STATE .

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16 IT MUST BE POINTED OUT THAT SUCH QUESTIONS OF CLASSIFICATION ARE GOVERNED BY NATIONAL LAW ALONE . IT IS THEREFORE FOR THE NATIONAL COURT OR TRIBUNAL TO DETERMINE THE SUBSTANCE OF, AND TO INTERPRET THE PROVISIONS OF, ITS OWN LEGISLATION AS REGARDS THE OVERLAPPING OF BENEFITS .

17 THE REPLY TO THE SECOND AND THIRD QUESTIONS MUST THEREFORE BE THAT THE CLASSIFICATION, FOR THE PURPOSES OF THE ANTI-OVERLAPPING RULES APPLIED BY A MEMBER STATE PROVIDING A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED UNDER THE LEGISLATION OF THAT STATE ALONE, OF AN INVALIDITY PENSION PAID BY ANOTHER MEMBER STATE, IS NOT GOVERNED BY COMMUNITY LAW .

THE FOURTH QUESTION

18 AS IS EVIDENT FROM THE GROUNDS OF ITS JUDGMENT MAKING THE REFERENCE TO THE COURT, THE COUR DU TRAVAIL SEEKS, BY ITS FOURTH QUESTION, TO ASCERTAIN IN ESSENCE WHETHER THE PROVISIONS OF ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72 ARE APPLICABLE TO THE OVERLAPPING OF A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE WITH A PENSION OF A DIFFERENT KIND ( AN INVALIDITY OR OLD-AGE PENSION ) TO WHICH THE RECIPIENT BECAME ENTITLED SOLELY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE .

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19 IN THAT CONNECTION IT MUST BE OBSERVED THAT AS THE OVERLAPPING OF BENEFITS OF A DIFFERENT KIND IS ALREADY CAPABLE OF FALLING WITHIN THE SCOPE OF ARTICLE 12*(2 ) OF REGULATION NO 1408/71, THE POSITION CAN BE NO DIFFERENT AS REGARDS ARTICLE 7*(1)*(B ), WHICH WAS ADOPTED TO GIVE EFFECT TO ARTICLE 12 OF THE BASIC REGULATION . HOWEVER, ARTICLE 7*(1)*(B ) RELATES SOLELY TO BENEFITS CALCULATED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46*(2 ) OF REGULATION NO 1408/71 . AS POINTED OUT IN RELATION TO THE FIRST QUESTION, THE AMOUNT OF A PENSION TO WHICH THE RECIPIENT BECAME ENTITLED SOLELY UNDER THE NATIONAL LEGISLATION OF A MEMBER STATE MUST IN PRINCIPLE BE DETERMINED ACCORDING TO THAT LEGISLATION WITHOUT THERE BEING ANY NEED TO TAKE ACCOUNT OF INSURANCE PERIODS COMPLETED UNDER THE LEGISLATION OF OTHER MEMBER STATES .

20 NEVERTHELESS, AS WAS ALSO STATED IN RELATION TO THE FIRST QUESTION, THE PROVISIONS OF ARTICLE 46 OF REGULATION NO 1408/71 MUST BE APPLIED IF THE APPLICATION OF NATIONAL LEGISLATION ALONE PROVES TO BE LESS FAVOURABLE TO THE RECIPIENT OF A PENSION . IN THIS CONNECTION IT MUST BE POINTED OUT THAT THE COMPARISON TO BE MADE FOR THE PURPOSES OF THE SECOND PARAGRAPH OF ARTICLE 46*(1 ) IS BETWEEN THE BENEFIT CALCULATED IN ACCORDANCE WITH NATIONAL LEGISLATION ALONE, INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS, AND THE BENEFIT CALCULATED IN ACCORDANCE WITH THE COMMUNITY RULES LAID DOWN IN ARTICLE 46*(2 ) SUBJECT TO THE APPLICATION OF THE ANTI-OVERLAPPING RULE LAID DOWN IN ARTICLE 12 OF REGULATION NO 1408/71 AND THE RULE ADOPTED FOR PUTTING THAT PROVISION INTO EFFECT, NAMELY ARTICLE 7 OF REGULATION NO 574/72 .

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IF THE LATTER CALCULATION PROVES TO BE MORE FAVOURABLE TO THE RECIPIENT, THAT CALCULATION MUST BE APPLIED SO THAT THE BENEFIT IN QUESTION WILL BE DETERMINED IN ACCORDANCE WITH THE PROVISIONS OF ARTICLE 46*(2 ) OF REGULATION NO 1408/71 .

21 THE REPLY TO THE FOURTH QUESTION MUST THEREFORE BE THAT THE PROVISIONS OF ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72 ARE APPLICABLE TO THE OVERLAPPING OF A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE WITH A PENSION OF A DIFFERENT KIND ( AN INVALIDITY OR OLD-AGE PENSION ) TO WHICH ENTITLEMENT WAS ACQUIRED SOLELY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE PROVES IN THE END TO BE LESS FAVOURABLE TO THE RECIPIENT .

COSTS

22 THE COSTS INCURRED BY THE ITALIAN REPUBLIC AND THE COMMISSION OF THE EUROPEAN COMMUNITIES, WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT, ARE NOT RECOVERABLE . AS THE PROCEEDINGS ARE, IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED, IN THE NATURE OF A STEP IN THE PROCEEDINGS BEFORE THE NATIONAL COURT, THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

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ON THOSE GROUNDS,

THE COURT ( SECOND CHAMBER ),

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE COUR DU TRAVAIL, MONS, BY JUDGMENT DATED 21 JUNE 1985, HEREBY RULES :

( 1 ) WHERE THE WIDOW OF A MIGRANT WORKER HAS BECOME ENTITLED TO AN INVALIDITY PENSION IN HER OWN RIGHT UNDER THE LEGISLATION OF A SINGLE MEMBER STATE AND IN ANOTHER MEMBER STATE CLAIMS A SURVIVOR' S PENSION TO WHICH SHE HAS BECOME ENTITLED UNDER THE LEGISLATION OF THAT MEMBER STATE ALONE, REGULATION NO 1408/71 DOES NOT PRECLUDE THE APPLICATION OF THE LATTER MEMBER STATE' S RULES FOR PREVENTING THE OVERLAPPING OF NATIONAL AND FOREIGN BENEFITS .

( 2 ) THE CLASSIFICATION, FOR THE PURPOSES OF THE ANTI-OVERLAPPING RULES APPLIED BY A MEMBER STATE PROVIDING A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED UNDER THE LEGISLATION OF THAT STATE ALONE, OF AN INVALIDITY PENSION PAID BY ANOTHER MEMBER STATE, IS NOT GOVERNED BY COMMUNITY LAW .

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( 3 ) THE PROVISIONS OF ARTICLE 7*(1)*(B ) OF REGULATION NO 574/72 ARE APPLICABLE TO THE OVERLAPPING OF A SURVIVOR' S PENSION TO WHICH THE RECIPIENT BECAME ENTITLED UNDER THE LEGISLATION OF A SINGLE MEMBER STATE WITH A PENSION OF A DIFFERENT KIND ( AN INVALIDITY OR OLD-AGE PENSION ) TO WHICH ENTITLEMENT WAS ACQUIRED SOLELY UNDER THE LEGISLATION OF ANOTHER MEMBER STATE IF THE APPLICATION OF THE NATIONAL LEGISLATION ALONE PROVES IN THE END TO BE LESS FAVOURABLE TO THE RECIPIENT .