Keywords
Summary

Keywords

1. Social security for migrant workers - Benefits - National rules against overlapping - Restriction of the ceiling fixed for the overlapping of a retirement and a survivor's pension where a survivor's pension is payable under the regime of another Member State - Legislation constituting a provision on reduction within the meaning of Regulation No 1408/71

(Council Regulation No 1408/71, Arts 46a and 46b)

2. Social security for migrant workers - Benefits - National rules against overlapping - Applicability - Limits - Community legislation, including its rules against overlapping, more favourable to the worker

(Council Regulation No 1408/71, Arts 12(2) and 46)

Summary

1. The legislation of a Member State governing the calculation of a survivor's pension and establishing a restriction of the ceiling fixed for the overlapping of a retirement and a survivor's pension where the surviving spouse can claim a survivor's pension payable by another Member State is a provision on reduction within the meaning of Articles 46a and 46b of Regulation No 1408/71 as amended by Regulation No 1248/92.

A national rule must be regarded as a provision on reduction of benefit, within the meaning of Regulation No 1408/71, if the calculation which it requires to be made has the effect of reducing the amount of the pension which the person concerned may claim, because he receives a benefit from another Member State.

( see paras 16, 20, operative part 1 )

2. Articles 46a and 46b of Regulation No 1408/71, as amended by Regulation No 1248/92, preclude the application of the legislation of a Member State containing a provision against overlapping under which a survivor's pension received in that Member State must be reduced because of a survivor's pension acquired in another Member State, where the benefits payable in application of the legislation of the first Member State are less favourable than those determined in application of Article 46 of that regulation.

The competent institution of a Member State must compare the benefits which would be payable in application of the national legislation alone, including its rules against overlapping, with those which would be payable in application of Community law, and award to the migrant worker the benefit which yields the higher amount.

( see paras 29-30, operative part 2 )