This document is an excerpt from the EUR-Lex website
Document 61983CC0181
Opinion of Mr Advocate General Lenz delivered on 25 October 1984. # A. Weber v Bestuur van de Nieuwe Algemene Bedrijfsvereniging. # Reference for a preliminary ruling: Centrale Raad van Beroep - Netherlands. # Social security - Article 47 of Regulation nº 1408/71 - Calculation of the theoretical amount. # Case 181/83.
Conclusiones del Abogado General Lenz presentadas el 25 de octubre de 1984.
A. Weber contra Bestuur van de Nieuwe Algemene Bedrijfsvereniging.
Petición de decisión prejudicial: Centrale Raad van Beroep - Países Bajos.
Seguridad Social - Artículo 47 del Reglamento nº 1408/71 - Cálculo de la cuantía teórica.
Asunto 181/83.
Conclusiones del Abogado General Lenz presentadas el 25 de octubre de 1984.
A. Weber contra Bestuur van de Nieuwe Algemene Bedrijfsvereniging.
Petición de decisión prejudicial: Centrale Raad van Beroep - Países Bajos.
Seguridad Social - Artículo 47 del Reglamento nº 1408/71 - Cálculo de la cuantía teórica.
Asunto 181/83.
ECLI identifier: ECLI:EU:C:1984:330
OPINION OF MR ADVOCATE GENERAL LENZ
DELIVERED ON 25 OCTOBER 1984 ( 1 )
Mr President,
Members of the Court,
In the case on which I shall give my views today, the facts are as follows:
A — |
The plaintiff, a Netherlands national, was employed in the Netherlands as a road-worker from 1932 until May 1950 and from June 1933 onwards paid contributions in accordance with the Netherlands Invalidity-Law. From May 1950 until October 1972 he worked as a self-employed paving contractor in the Netherlands, and until January 1965 paid voluntary contributions under the Invalidity Law. In December 1972 he moved — apparently on account of his wife's state of health — to Germany, where, after a period of unemployment, he took up employment in May 1973 as a surveyor's assistant. In June 1974 he became incapacitated for work and thereafter drew sickness benefits. In September 1974 he returned to the Netherlands, where, from September 1975 (until which time payment of the German sickness benefits apparently continued) he carried out light part-time work for a Netherlands firm. In June 1975 he applied for disability benefit to the Bestuur van de Nieuwe Algemene Bedrijfsvereniging [Board of the New General Trade Association], the defendant in the main proceedings. The application was approved by a decision dated September 1977; as a result the plaintiff received benefits, backdated to September 1975, on account of the disability which had commenced in June 1974, its severity being initially assessed at 55 to 65 % but from April 1977 at 80 to 100 %. The parties are in dispute over the level of the so-called “daily wage”, which serves as a basis, under the Netherlands Law on Disability Insurance (Wet op de Arbeidsongeschiktheidsversekering, hereinafter referred to as “the WAO”), for calculating the benefit due to the plaintiff. In establishing that daily wage, the defendant proceeded on the basis of the remuneration which the plaintiff received as a surveyor's assistant in the Federal Republic of Germany during his one year or so of employment, before he became incapacitated for work on 11 June 1974. The plaintiff, on the other hand, takes the view that the daily wage should properly be calculated by reference to the income which he received over a period of 40 years as a road-worker and foreman in the Netherlands. The court before which the matter was brought now wishes to know how to resolve that issue in accordance with Community law. It referred to the Court of Justice several questions, the wording of which may be found in the request for a preliminary ruling. |
B — |
In order to be able to understand and answer the questions submitted, it must be appreciated that there are two distinct types of invalidity insurance in the Member States of the European Communities (see Article 40 (1) of Regulation No 1408/71, and Annex IV thereto). Under the first type the amount of benefit is independent of the length of the insurance periods completed. Invalidity insurance schemes belonging to that type are known as risk schemes. The Commission, in its observations, designates them by the letter A. Under the other type of scheme, the amount of the benefit depends on the length of the insurance periods completed; it is known as a cumulative or endowment system. The Commission designates it by the letter B. The Netherlands scheme belongs to type A, whilst the German scheme belongs to type B. The plaintiff has completed periods of insurance under both types of scheme; at the onset of his disability he belonged to a type B scheme.
|
C — |
Accordingly the answers to be given to the questions raised by the Centrale Raad van Beroep are as follows: Article 47 (1) of Regulation No 1408/71 continues, in principle, to apply even where the second sentence of Article 46 (2) (a) comes into operation; that is to say where an invalidity benefit is to be determined under a risk scheme winch is not concerned with the length of the insurance periods completed but in which the remuneration received by the insured during a period immediately preceding his incapacitation for work serves to determine the relevant loss of earnings. Where a claim to benefit under a risk scheme arises only if certain insurance periods are taken into consideration, a Member State operating such a scheme is not precluded, when calculating benefit under Article 46 (2) (a) trom proceeding on the basis of the last remuneration received by the claimant in another Member State immediately before he became incapacitated for work. |
( 1 ) Translated from the German.