61977J0032

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - SOCIAL SECURITY BENEFITS - CALCULATION - APPORTIONMENT - CONDITION - AGGREGATION OF INSURANCE PERIODS

( EEC TREATY , ARTICLE 51 ; REGULATION NO 1408/71 OF THE COUNCIL , ARTICLE 46 ( 3 ))

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - SOCIAL SECURITY BENEFITS - CALCULATION - RESIDENCE CLAUSE - WAIVER - CONSEQUENTIAL APPORTIONMENT - NOT PERMISSIBLE

( REGULATION NO 1408/71 OF THE COUNCIL , ARTICLES 10 AND 46 ( 3 ))

1 . ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 IS APPLICABLE ONLY IN CASES WHERE , FOR THE PURPOSE OF ACQUIRING THE RIGHT TO BENEFIT WITHIN THE MEANING OF ARTICLE 51 ( A ) OF THE TREATY , IT IS NECESSARY TO HAVE RECOURSE TO THE ARRANGEMENTS FOR AGGREGATION OF THE PERIODS OF INSURANCE .

2 . SINCE THE WAIVING OF RESIDENCE CLAUSES PURSUANT TO ARTICLE 10 OF REGULATION NO 1408/71 HAS NO EFFECT ON THE ACQUISITION OF THE RIGHT TO BENEFIT , IT CANNOT INVOLVE THE APPLICATION OF ARTICLE 46 ( 3 ) OF THAT REGULATION .

IN CASE 32/77

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE SOZIALGERICHT AUGSBURG FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

ANTONIO GIULIANI , SAN MARCO IN LAMIS ( ITALY )

AND

LANDESVERSICHERUNGSANSTALT SCHWABEN , AUGSBURG

ON THE VALIDITY OF ARTICLE 46 ( 3 ) 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 )

1 BY ORDER OF 27 JANUARY 1977 , WHICH REACHED THE COURT REGISTRY ON 14 MARCH 1977 , THE SOZIALGERICHT AUGSBURG REFERRED CERTAIN QUESTIONS UNDER ARTICLE 177 OF THE EEC TREATY CONCERNING THE VALIDITY OF ARTICLE 46 ( 3 ) 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THOSE QUESTIONS ARE REFERRED IN CONNEXION WITH PROCEEDINGS CONCERNING THE WAY IN WHICH THE COMPETENT GERMAN INSTITUTION CALCULATED THE INVALIDITY PENSION OF AN ITALIAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , WHO RESIDES IN ITALY AND WHO WORKED FIRST IN ITALY AND SUBSEQUENTLY IN GERMANY .

THE FILE SHOWS THAT THE PLAINTIFF IN THE MAIN ACTION SATISFIES THE CONDITIONS FOR ENTITLEMENT TO A PENSION UNDER GERMAN LEGISLATION ALONE BUT THAT , FAILING THE APPLICATION OF ARTICLE 10 OF REGULATION NO 1408/71 , PAYMENT OF THE PENSION WOULD HAVE HAD TO HAVE BEEN HELD IN ABEYANCE BY VIRTUE OF A RESIDENCE CLAUSE CONTAINED IN THAT LEGISLATION .

ACTING UNDER THE RULE LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71 , FOR THE LIMITATION OF BENEFITS , THE GERMAN INSTITUTION CALCULATED THE PENSION OF THE PERSON CONCERNED BY AGGREGATING THE ITALIAN AND GERMAN PERIODS OF INSURANCE AND APPORTIONING THE BENEFIT , WHICH IT SUBSEQUENTLY ADJUSTED IN ACCORDANCE WITH PARAGRAPH ( 3 ) OF THE SAID ARTICLE .

THE PLAINTIFF IN THE MAIN ACTION CLAIMS THAT HE SHOULD BE GRANTED A PENSION CALCULATED EXCLUSIVELY IN ACCORDANCE WITH THE PROVISIONS OF GERMAN LEGISLATION .

3 THE FIRST QUESTION ASKS WHETHER THE COURT OF JUSTICE , ' HAVING REGARD TO THE PRINCIPLE OF EQUALITY , ADHERES TO ITS RULING ( JUDGMENT OF 21 OCTOBER 1975 IN PETRONI , CASE 24/75 ) TO THE EFFECT THAT ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON THE OVERLAPPING OF TWO BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF A BENEFIT ACQUIRED UNDER THE NATIONAL LEGISLATION OF A MEMBER STATE ALONE ' .

IT IS THEN ASKED WHETHER ' ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL IS , WHERE APPROPRIATE , VALID IN SO FAR AS RIGHTS TO PAYMENT ARE THEREBY LIMITED WHICH WOULD NOT EXIST IN THE ABSENCE OF COMMUNITY LAW ' .

IT IS FURTHER ASKED WHETHER ' RIGHTS TO PAYMENT EXIST IN THE ABSENCE OF COMMUNITY LAW OR WHETHER SUCH RIGHTS ARE ACQUIRED UNDER THE LEGISLATION OF A MEMBER STATE , THEY CAN BE REALIZED , BY REASON OF NATIONAL SUSPENSORY PROVISIONS , ONLY THROUGH THE WAIVING OF RESIDENCE CLAUSES UNDER ARTICLE 10 OF REGULATION NO 1408/71 ' .

THE FINAL QUESTION IS : ' HOW IS THE LAST QUESTION TO BE ANSWERED IF BILATERAL OR MULTILATERAL CONVENTIONS BETWEEN THE MEMBER STATES CONCERNED HAVE ALREADY PROVIDED RULES CORRESPONDING TO THOSE IN ARTICLE 10 OF REGULATION NO 1408/71?

' .

4 THE FIRST SUBPARAGRAPH OF ARTICLE 10 ( 1 ) OF REGULATION NO 1408/71 PROVIDES : ' SAVE AS OTHERWISE PROVIDED IN THIS REGULATION , INVALIDITY , OLD AGE OR SURVIVORS ' CASH BENEFITS , PENSIONS FOR ACCIDENTS AT WORK OR OCCUPATIONAL DISEASES AND DEATH GRANTS ACQUIRED UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHALL NOT BE SUBJECT TO ANY REDUCTION , MODIFICATION , SUSPENSION , WITHDRAWAL OR CONFISCATION BY REASON OF THE FACT THAT THE RECIPIENT RESIDES IN A TERRITORY OF A MEMBER STATE OTHER THAN THAT IN WHICH THE INSTITUTION RESPONSIBLE FOR PAYMENT IS SITUATED ' .

5 AS THE COURT HAS ALREADY RULED , IN ITS JUDGMENT OF 21 OCTOBER 1975 ( PETRONI , CASE 24/75 ( 1975 ) ECR 1149 ), ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 OF THE COUNCIL IS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY TO THE EXTENT TO WHICH IT IMPOSES A LIMITATION ON BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF A BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE .

ARTICLE 51 OF THE TREATY REFERS TO TWO OBJECTIVES WHICH , ALTHOUGH CONNECTED , ARE DIFFERENT , NAMELY ( A ) AGGREGATION , FOR THE PURPOSE OF ACQUIRING THE RIGHT TO BENEFIT , OF ALL PERIODS TAKEN INTO ACCOUNT UNDER THE LAWS OF THE SEVERAL COUNTRIES , AND ( B ) PAYMENTS OF BENEFITS TO PERSONS RESIDENT IN THE TERRITORIES OF MEMBER STATES .

HOWEVER , THE DECISION REFERRED TO BY THE SOZIALGERICHT RELATES SPECIFICALLY TO A BENEFIT ACQUIRED BY VIRTUE OF THE NATIONAL LEGISLATION OF A MEMBER STATE ALONE WITHOUT ITS BEING NECESSARY TO HAVE RECOURSE TO THE ARRANGEMENTS FOR AGGREGATION AND APPORTIONMENT AS PROVIDED FOR UNDER SUBPARAGRAPH ( A ) OF ARTICLE 51 .

6 CONSEQUENTLY , THE ANSWER TO BE GIVEN TO THE FIRST TWO QUESTIONS IS THAT ARTICLE 46 ( 3 ) IS APPLICABLE ONLY IN CASES WHERE , FOR THE PURPOSE OF ACQUIRING THE RIGHT TO BENEFIT WITHIN THE MEANING OF ARTICLE 51 ( A ) OF THE TREATY , IT IS NECESSARY TO HAVE RECOURSE TO THE ARRANGEMENTS FOR AGGREGATION OF THE PERIODS OF INSURANCE .

IT FOLLOWS FROM THE FOREGOING THAT , SINCE THE WAIVING OF RESIDENCE CLAUSES PURSUANT TO ARTICLE 10 OF REGULATION NO 1408/71 HAS NO EFFECT ON THE ACQUISITION OF THE RIGHT TO BENEFIT , IT CANNOT INVOLVE THE APPLICATION OF ARTICLE 46 ( 3 ) OF THAT REGULATION .

7 THE ANSWERS TO THE FIRST THREE QUESTIONS MAKE IT UNNECESSARY TO ANSWER THE FOURTH .

COSTS

8 THE COSTS INCURRED BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAS SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN ACTION ARE CONCERNED , IN THE NATURE OF A STEP IN THE ACTION PENDING BEFORE THE NATIONAL COURT , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTIONS REFERRED TO IT BY THE SOZIALGERICHT AUGSBURG BY ORDER OF 27 JANUARY 1977 HEREBY RULES :

1 . ARTICLE 46 ( 3 ) OF REGULATION NO 1408/71 IS APPLICABLE ONLY IN CASES WHERE , FOR THE PURPOSE OF ACQUIRING THE RIGHT TO BENEFIT WITHIN THE MEANING OF ARTICLE 51 ( A ) OF THE TREATY , IT IS NECESSARY TO HAVE RECOURSE TO THE ARRANGEMENTS FOR AGGREGATION OF THE PERIODS OF INSURANCE .

2 . SINCE THE WAIVING OF RESIDENCE CLAUSES PURSUANT TO ARTICLE 10 OF REGULATION NO 1408/71 HAS NO EFFECT ON THE ACQUISITION OF THE RIGHT TO BENEFIT , IT CANNOT INVOLVE THE APPLICATION OF ARTICLE 46 ( 3 ) OF THAT REGULATION .