Judgment of the Court (Fifth Chamber) of 7 March 2013 (request for a preliminary ruling from the arbeidshof te Antwerpen — Belgium) — Aldegonda van den Booren v Rijksdienst voor Pensioenen

(Case C-127/11) (1)

(Social security for migrant workers - Article 46a of Regulation (EEC) No 1408/71 - National rules against overlapping - Old-age pension - Increase in the amount paid by a Member State - Survivor’s pension - Reduction in the amount paid by another Member State)

2013/C 123/03

Language of the case: Dutch

Referring court

Arbeidshof te Antwerpen

Parties to the main proceedings

Applicant: Aldegonda van den Booren

Defendant: Rijksdienst voor Pensioenen

Re:

Request for a preliminary ruling — Arbeidshof te Antwerpen — Interpretation of Articles 10 EC, 39 EC and 42 EC (now Articles 4(3) TUE, 45 TFEU and 48 TFEU respectively) and Article 46a(3)(a) of Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ, English special edition, 1971 (II), p. 416) — Benefits — National anti-overlapping rules — Reduction of the survivor’s pension paid by the first Member State because of an increase in the old-age pension paid by another Member State

Operative part of the judgment

Article 46a of Regulation (EEC) No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended and updated by Council Regulation (EC) No 118/97 of 2 December 1996, as amended by Regulation (EC) No 1386/2001 of the European Parliament and of the Council of 5 June 2001, must be interpreted as meaning that it does not preclude the application of legislative rules of a Member State containing a provision under which a survivor’s pension received in that Member State is reduced as a result of the increase in an old-age pension received under the legislation of another Member State, provided, in particular, that the conditions set out in Article 46a(3)(d) are observed.

Article 45 TFEU must be interpreted as meaning that it likewise does not preclude the application of such national legislative rules in so far as they do not lead, in respect of the person concerned, to an unfavourable situation in comparison with that of a person whose situation has no cross-border element, and, if such a disadvantage is established, in so far as it is justified by objective considerations and is proportionate in relation to the objective legitimately pursued by national law, this being a matter for the referring court to ascertain.

(1)  OJ C 152, 21.5.2011.