61977J0037

SOCIAL SECURITY FOR MIGRANT WORKERS - SOCIAL SECURITY BENEFITS - ENTITLEMENT BY VIRTUE OF NATIONAL LEGISLATION ALONE - FULL APPLICATION OF THE LATTER - ADVANTAGES OF THE SYSTEM - AGGREGATION AND APPORTIONMENT - PREFERENCE

REGULATION NO 1408/71 , ARTICLE 46 ( 1 )

SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE THAN THE APPLICATION OF THE RULES REGARDING AGGREGATION AND APPORTIONMENT THOSE RULES MUST , BY VIRTUE OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , BE APPLIED .

IN CASE 37/77

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

FERNANDO GRECO , CHATELINEAU ,

AND

FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS , BRUSSELS ,

ON THE INTERPRETATION 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ),

1 BY A JUDGMENT OF 24 MARCH 1977 WHICH WAS RECEIVED AT THE COURT REGISTRY ON 30 MARCH 1977 THE TRIBUNAL DU TRAVAIL , CHARLEROI , REFERRED A QUESTION TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY ON THE INTERPRETATION 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 ( OJ , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ).

2 THAT QUESTION HAS BEEN REFERRED IN THE CONTEXT OF AN ACTION CONCERNING THE WAY IN WHICH THE COMPETENT BELGIAN INSTITUTION CALCULATED THE INVALIDITY PENSION OF AN ITALIAN NATIONAL , THE PLAINTIFF IN THE MAIN ACTION , WHO WORKED FIRST IN ITALY AS A BUILDING WORKER , THEN IN BELGIUM AS AN UNDERGROUND WORKER IN THE MINES .

3 IN BELGIUM THAT WORKER SATISFIED ALL THE CONDITIONS LAID DOWN BY THE NATIONAL LEGISLATION FOR ENTITLEMENT TO AN INVALIDITY PENSION UNDER THE SCHEME FOR MINEWORKERS .

4 ON THE OTHER HAND , FOR HIS ENTITLEMENT TO BENEFIT IN ITALY , HE HAD TO HAVE RECOURSE TO THE PROVISIONS OF ARTICLE 45 OF REGULATION NO 1408/71 ; FOR THE PURPOSE OF CALCULATING THAT BENEFIT , THE PERIODS ACTUALLY COMPLETED IN BOTH MEMBER STATES WERE AGGREGATED AND THE ITALIAN BENEFIT WAS APPORTIONED .

5 APPLYING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , THE BELGIAN INSTITUTION THEN DEDUCTED THE APPORTIONED AMOUNT OF THE ITALIAN BENEFIT FROM THE INVALIDITY PENSION , AND ASKED THE PERSON CONCERNED TO REFUND THE SUM PAID AS A RECOVERABLE ADVANCE .

6 THE QUESTION REFERRED TO THE COURT IS WHETHER ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 IS COMPATIBLE WITH THE REDUCTION OF AN INVALIDITY PENSION GRANTED BY A MEMBER STATE UNDER ARTICLE 46 ( 1 ) ON THE GROUND THAT SIMILAR BENEFITS ARE AWARDED BY THE COMPETENT INSTITUTION OF ANOTHER MEMBER STATE , WHERE SUCH REDUCTION IS EFFECTED ON THE BASIS OF PROVISIONS OF THE INTERNAL LAW OF THE FIRST MEMBER STATE .

7 ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 PROVIDES THAT ' THE LEGISLATIVE PROVISIONS OF A MEMBER STATE FOR REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT IN CASES OF OVERLAPPING WITH OTHER SOCIAL SECURITY BENEFITS OR OTHER INCOME MAY BE INVOKED EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE OR SUCH INCOME ARISES IN THE TERRITORY OF ANOTHER MEMBER STATE . HOWEVER , THIS PROVISION SHALL NOT APPLY WHEN THE PERSON CONCERNED RECEIVES BENEFITS OF THE SAME KIND IN RESPECT OF INVALIDITY , OLD-AGE , DEATH ( PENSIONS ) OR OCCUPATIONAL DISEASE WHICH ARE AWARDED BY THE INSTITUTIONS OF TWO OR MORE MEMBER STATES IN ACCORDANCE WITH ARTICLES 46 , 50 , 51 OR ARTICLE 60 ( 1 ) ( B ) ' .

8 AS THE COURT HAS ALREADY RULED IN ITS JUDGMENT OF 21 OCTOBER 1975 ( CASE 24/75 , PETRONI V ONPTS ( 1975 ) ECR 1149 ), ARTICLE 46 ( 3 ) 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 .

9 IT FOLLOWS THAT THE PROVISIONS OF THAT PARAGRAPH ARE NOT APPLICABLE WHERE THEY BRING ABOUT A REDUCTION IN THE BENEFIT ACQUIRED BY VIRTUE OF A MEMBER STATE ' S NATIONAL LEGISLATION ALONE AND THAT , WHERE THAT IS THE CASE , THE SECOND SENTENCE OF ARTICLE 12 ( 2 ) IS INAPPLICABLE .

10 WHEN THE SECOND SENTENCE IS NOT APPLICABLE , THE FIRST SENTENCE APPLIES , WITH THE CONSEQUENCE THAT NATIONAL LEGISLATIVE PROVISIONS FOR REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFIT MAY BE INVOKED .

11 HOWEVER , IT APPEARS FROM ARTICLE 46 ( 1 ) THAT IF THE APPLICATION OF NATIONAL PROVISIONS ON ENTITLEMENT AND CALCULATION ALONE IS LESS ADVANTAGEOUS FOR THE WORKER THAN THE APPLICATION OF THE RULES FOR AGGREGATION AND APPORTIONMENT , THE LATTER MUST BE APPLIED .

12 THEREFORE THE ANSWER SHOULD BE THAT , SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE THAN THE APPLICATION OF THE RULES REGARDING AGGREGATION AND APPORTIONMENT THOSE RULES MUST , BY VIRTUE OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , BE APPLIED .

COSTS

13 THE COSTS INCURRED BY THE BELGIAN GOVERNMENT , THE NETHERLANDS GOVERNMENT AND THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE .

14 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 IN QUESTION , THE DECISION ON COSTS IS A MATTER FOR THAT COURT .

ON THOSE GROUNDS ,

THE COURT

IN ANSWER TO THE QUESTION REFERRED TO IT BY THE TRIBUNAL DU TRAVAIL , CHARLEROI , BY A JUDGMENT OF 24 MARCH 1977 , HEREBY RULES :

SO LONG AS A WORKER IS RECEIVING A PENSION BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION , INCLUDING THE NATIONAL RULES AGAINST THE OVERLAPPING OF BENEFITS , FROM BEING APPLIED TO HIM IN ITS ENTIRETY , PROVIDED THAT IF THE APPLICATION OF SUCH NATIONAL LEGISLATION PROVES LESS FAVOURABLE THAN THE APPLICATION OF THE RULES REGARDING AGGREGATION AND APPORTIONMENT THOSE RULES MUST , BY VIRTUE OF ARTICLE 46 ( 1 ) OF REGULATION NO 1408/71 , BE APPLIED .