61981J0238

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES AGAINST OVERLAPPING BENEFITS - INAPPLICABILITY TO PERSONS IN RECEIPT OF BENEFITS OF THE SAME KIND AWARDED UNDER REGULATION NO 1408/71 - ' ' BENEFITS ' ' OF THE SAME KIND - CRITERIA - IDENTICAL PURPOSE AND BASIS OF CALCULATION

( REGULATION NO 1408/71 OF THE COUNCIL , ARTICLE 12 ( 2 ) AND CHAPTER 3 )

2.SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - OVERLAPPING - RIGHT ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION ALONE - APPLICABILITY OF NATIONAL RULES AGAINST OVERLAPPING BENEFITS - LIMITS - COMMUNITY RULES MORE FAVOURABLE TO THE WORKER

( REGULATION NO 1408/71 OF THE COUNCIL , ARTICLE 12 ( 2 ) AND ARTICLE 46 ( 3 ))

3.SOCIAL SECURITY FOR MIGRANT WORKERS - FINANCIAL PROVISIONS - COMMUNITY RULES ON THE CONVERSION OF CURRENCIES - INAPPLICABILITY TO BENEFITS AWARDED ON THE BASIS OF NATIONAL LEGISLATION ALONE

( REGULATION NO 574/72 OF THE COUNCIL , ARTICLE 107 )

4.SOCIAL SECURITY FOR MIGRANT WORKERS - FINANCIAL PROVISIONS - COMMUNITY RULES ON THE CONVERSION OF CURRENCIES - BENEFITS AWARDED PURSUANT TO COMMUNITY LAW - VARIATIONS IN THE RATES OF CONVERSION OF CURRENCIES - PERIODICAL RECALCULATION OF BENEFITS - OBLIGATION - ABSENCE

( REGULATION NO 1408/71 OF THE COUNCIL , ARTICLES 46 AND 51 ; REGULATION NO 574/72 OF THE COUNCIL , ARTICLE 107 )

1 . IRRESPECTIVE OF THE CHARACTERISTICS PECULIAR TO THE VARIOUS NATIONAL LAWS , SOCIAL SECURITY BENEFITS MUST BE CONSIDERED TO BE OF THE SAME KIND WHEN THEIR PURPOSE AND BASIS OF CALCULATION ARE THE SAME . IN THAT RESPECT , BENEFITS ACQUIRED UNDER THE LEGISLATION OF TWO MEMBER STATES , WHICH SEEKS TO ENSURE THAT AN AGED PERSON DEPRIVED OF THE INCOME OF HIS OR HER DECEASED SPOUSE HAS SUFFICIENT MEANS OF SUBSISTENCE , AND THE RESPECTIVE AMOUNTS OF WHICH ARE DETERMINED ON THE BASIS OF THE INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS OF THAT SPOUSE , MUST BE CONSIDERED TO BE BENEFITS OF THE SAME KIND BY REASON OF THEIR IDENTICAL PURPOSE AND BASIS OF CALCULATION .

2 . WHEN A WORKER RECEIVES A PENSION PURSUANT TO NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THAT LEGISLATION FROM BEING APPLIED TO HIM IN ITS ENTIRETY , INCLUDING THE NATIONAL RULES AGAINST OVERLAPPING BENEFITS . IF , HOWEVER , THE APPLICATION OF THAT NATIONAL LEGISLATION IS LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF ARTICLE 46 OF REGULATION NO 1408/71 , THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED . ON THE LATTER SUPPOSITION , PARAGRAPH ( 3 ) OF ARTICLE 46 IS APPLICABLE TO THE EXCLUSION OF RULES AGAINST OVERLAPPING LAID DOWN BY NATIONAL LEGISLATION .

3 . WHERE BENEFITS OF THE SAME KIND ARE GRANTED OR AWARDED IN DIFFERENT MEMBER STATES ON THE BASIS OF ANALOGOUS NATIONAL RULES , WITHOUT ANY REFERENCE TO THE PROVISIONS OF REGULATION NO 1408/71 , THERE ARE NO GROUNDS FOR APPLYING THE METHOD OF CURRENCY CONVERSION SET OUT IN ARTICLE 107 OF REGULATION NO 574/72 .

4 . NO PROVISION OF COMMUNITY LAW REQUIRES THE PERIODICAL RECALCULATION , BY REASON OF A VARIATION IN THE RATES OF CONVERSION OF CURRENCIES , OF A SOCIAL SECURITY BENEFIT WHOSE AMOUNT HAS BEEN ESTABLISHED IN ANOTHER MEMBER STATE .

IN CASE 238/81

REFERENCE TO THE COURT UNDER ARTICLE 177 OF THE EEC TREATY BY THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ) FOR A PRELIMINARY RULING IN THE ACTION PENDING BEFORE THAT COURT BETWEEN

RAAD VAN ARBEID ( LABOUR COUNCIL ), THE HAGUE ,

AND

MRS VAN DER BUNT-CRAIG

ON THE INTERPRETATION OF THE PROVISIONS 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF ARTICLE 107 OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 , AS AMENDED BY REGULATION ( EEC ) NO 2639/74 OF THE COUNCIL OF 15 OCTOBER 1974 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ),

1 BY AN ORDER DATED 11 AUGUST 1981 , WHICH WAS RECEIVED AT THE COURT ON 27 AUGUST 1981 , THE CENTRALE RAAD VAN BEROEP ( COURT OF LAST INSTANCE IN SOCIAL SECURITY MATTERS ) REFERRED TO THE COURT FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY QUESTIONS ON THE INTERPRETATION OF THE PROVISIONS 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 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1971 ( II ), P . 416 ) AND OF ARTICLE 107 OF REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 ( OFFICIAL JOURNAL , ENGLISH SPECIAL EDITION 1972 ( I ), P . 159 ).

2 THE QUESTIONS ARISE WITHIN THE CONTEXT OF A DISPUTE BETWEEN MRS VAN DER BUNT-CRAIG AND THE RAAD VAN ARBEID ( LABOUR COUNCIL ) RELATING TO THE APPLICATION BY THE LATTER OF THE PROVISIONS OF THE ROYAL DECREE OF 20 MARCH 1968 ( STAATSBLAD NO 174 ). THAT DECREE , ISSUED PURSUANT TO ARTICLE 30 ( A ) OF THE ALGEMENE WEDUWEN- EN WEZENWET ( GENERAL LAW ON PENSIONS FOR WIDOWS AND ORPHANS , HEREINAFTER REFERRED TO AS ' ' THE WIDOWS AND ORPHANS LAW ' ' ), SEEKS TO LIMIT THE OVERLAPPING OF BENEFITS GRANTED UNDER THE WIDOWS AND ORPHANS LAW WITH BENEFITS GRANTED UNDER THE SOCIAL LEGISLATION OF ANOTHER MEMBER STATE .

3 THE FILE SHOWS THAT MRS VAN DER BUNT-CRAIG , OF BRITISH NATIONALITY , LIVED IN THE UNITED KINGDOM FROM THE DATE OF HER BIRTH AND FOLLOWED A CAREER AS A NURSE . HER HUSBAND , MR VAN DER BUNT , OF NETHERLANDS NATIONALITY , WORKED IN THE UNITED KINGDOM FROM 1919 AND IN 1955 WAS GRANTED A RETIREMENT PENSION THERE . THE COUPLE LATER SETTLED IN THE NETHERLANDS . THERE , FROM 1961 , MR VAN DER BUNT WAS ALSO AWARDED A RETIREMENT PENSION PURSUANT TO THE ALGEMENE OUDERDOMSWET ( GENERAL LAW ON OLD-AGE PENSIONS , HEREINAFTER REFERRED TO AS ' ' THE OLD-AGE LAW ' ' ).

4 ON 4 FEBRUARY 1974 , MRS VAN DER BUNT-CRAIG , THEN AGED 60 , WAS GRANTED A UNITED KINGDOM RETIREMENT PENSION OF POUNDS 6 PER WEEK , AWARDED SOLELY BY REASON OF THE NATIONAL INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS OF HER HUSBAND . AS A RESULT OF HIS DEATH IN THE NETHERLANDS ON 17 SEPTEMBER 1974 , THE AMOUNT OF MRS VAN DER BUNT-CRAIG ' S RETIREMENT PENSION , WHICH CONTINUED TO BE PAID ON THE BASIS OF MR VAN DER BUNT ' S CONTRIBUTIONS , WAS RECALCULATED AND , FROM 23 SEPTEMBER 1974 , WAS INCREASED FROM POUNDS 6 TO POUNDS 10 PER WEEK . ON 4 OCTOBER 1974 MRS VAN DER BUNT-CRAIG ASKED THE RAAD VAN ARBEID TO GRANT HER A WIDOW ' S PENSION UNDER THE WIDOWS AND ORPHANS LAW .

5 TAKING THE VIEW THAT THE RETIREMENT PENSION AWARDED TO MRS VAN DER BUNT-CRAIG BY REASON OF HER HUSBAND ' S INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS WAS A SURVIVOR ' S PENSION , THE RAAD VAN ARBEID APPLIED THE PROVISIONS OF ARTICLE 1 ( 1 ) OF THE ROYAL DECREE OF 20 MARCH 1968 WHICH PROVIDES :

' ' IN THE EVENT OF A WIDOW ' S PENSION DUE UNDER THE WIDOWS AND ORPHANS LAW OVERLAPPING OVER THE SAME PERIOD WITH ONE OR MORE SURVIVOR ' S BENEFITS DUE UNDER THE SOCIAL LEGISLATION OF ONE OR MORE OTHER STATES , THE WIDOW ' S PENSION SHALL BE REDUCED BY SUCH AN AMOUNT AS IS COMMENSURATE WITH THE PROPORTION WHICH THE LENGTH OF COMPLETED PERIODS OF INSURANCE OR WORK OF THE PERSON WHOSE DEATH IS THE BASIS FOR ENTITLEMENT TO WIDOW ' S PENSION UNDER THE LEGISLATION OF THE OTHER STATE OR STATES BEARS TO THE LENGTH OF THE PERIOD BETWEEN THE DATE ON WHICH THE DECEASED REACHED 15 YEARS OF AGE AND THE DATE ON WHICH HE DIED . ' '

6 ON THE BASIS OF THOSE PROVISIONS THE RAAD VAN ARBEID , BY A DECISION OF 29 DECEMBER 1975 , GRANTED MRS VAN DER BUNT-CRAIG A WIDOW ' S PENSION UNDER THE WIDOWS AND ORPHANS LAW AT THE RATE OF 100 % FROM 1 SEPTEMBER 1974 THEN AT THE RATE OF 47.91 % FROM 23 SEPTEMBER 1974 , THE DATE ON WHICH THE AMOUNT OF THE UNITED KINGDOM RETIREMENT PENSION WAS INCREASED BY REASON OF MR VAN DER BUNT ' S DEATH . THE RAAD VAN ARBEID MOREOVER GRANTED HER A SUPPLEMENTARY BENEFIT PURSUANT TO ARTICLE 1 ( 3 ) OF THE SAME ROYAL DECREE WHICH PROVIDES :

' ' IF THE AGGREGATE OF THE REDUCED WIDOW ' S PENSION AND THE SURVIVOR ' S BENEFITS PAYABLE UNDER THE LEGISLATION OF ONE OR MORE STATES IS LESS THAN THE AMOUNT OF THE WIDOW ' S PENSION BEFORE IT WAS REDUCED PURSUANT TO PARAGRAPH ( 1 ) HEREOF A SUPPLEMENT SHALL BE AWARDED EQUIVALENT TO THE DIFFERENCE BETWEEN THE AGGREGATE AND THE LAST-MENTIONED AMOUNT . ' '

7 FOR THE CONVERSION OF THE RETIREMENT PENSION INTO NETHERLANDS CURRENCY , THE RAAD VAN ARBEID , PURSUANT TO THE LATTER PART OF ARTICLE 3 OF THE ROYAL DECREE OF 20 MARCH 1968 , USED THE RATE NOTIFIED BY THE NEDERLANDSE BANK ( BANK OF THE NETHERLANDS ) WHICH WAS IN FORCE ON 23 SEPTEMBER 1974 . THAT RATE CORRESPONDED TO THE CONVERSION RATE FIXED BY REGULATION ( EEC ) NO 574/72 OF THE COUNCIL OF 21 MARCH 1972 . THE RAAD VAN ARBEID DECIDED NOT TO TAKE INTO CONSIDERATION DIFFERENCES IN THE EXCHANGE RATES ARISING AFTER 23 SEPTEMBER 1974 .

8 MRS VAN DER BUNT-CRAIG BROUGHT AN ACTION AGAINST THAT DECISION BEFORE THE RAAD VAN BEROEP ( SOCIAL SECURITY COURT ) WHICH , BY A JUDGMENT OF 26 APRIL 1977 , QUASHED THE DISPUTED DECISION IN SO FAR AS IT DETERMINED THAT THE TOTAL AMOUNT OF THE RETIREMENT PENSION WAS A SURVIVOR ' S BENEFIT WITHIN THE MEANING OF ARTICLE 1 ( 1 ) OF THE ROYAL DECREE OF 20 MARCH 1968 .

9 THE RAAD VAN ARBEID APPEALED AGAINST THAT JUDGMENT TO THE CENTRALE RAAD VAN BEROEP WHICH HAS PUT TO THE COURT THE FOLLOWING QUESTIONS :

' ' 1 . IF A PENSION WHICH IS RECEIVED SOLELY BY VIRTUE OF NATIONAL LEGISLATION ALSO OVERLAPS WITH A BENEFIT OF A DIFFERENT KIND OF ANOTHER MEMBER STATE SHOULD THE APPLICATION OF A NATIONAL PROVISION AGAINST OVERLAPPING BENEFITS BE RESTRICTED IN SUCH A WAY THAT WHERE THE APPLICATION OF THE NATIONAL LEGISLATION IS LESS FAVOURABLE THAN THAT OF THE RULES CONTAINED IN ARTICLE 46 OF REGULATION NO 1408/71 THAT ARTICLE MUST BE APPLIED?

2.MUST ARTICLE 107 OF REGULATION NO 574/72 BE CONSTRUED TO MEAN THAT THE METHOD FOR CONVERTING CURRENCIES LAID DOWN BY THAT ARTICLE ALSO APPLIES TO THE CONVERSION PURSUANT TO A NATIONAL PROVISION OF OVERLAPPING BENEFITS WHICH IS SAVED BY ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 OF BENEFITS OF ANOTHER MEMBER STATE?

3.DO THE OBJECTIVES UNDERLYING ARTICLES 48 TO 51 OF THE TREATY ESTABLISHING THE EUROPEAN ECONOMIC COMMUNITY REQUIRE THAT CURRENT BENEFITS ( CALCULATED SOLELY ON THE BASIS OF NATIONAL LAW OR UNDER THE RULES CONTAINED IN ARTICLE 46 OF REGULATION NO 1408/71 ) WHOSE AMOUNT IS DEPENDENT AT THE TIME THEY ARE AWARDED INTER ALIA ON THE AMOUNT OF ONE OR MORE BENEFITS DUE UNDER THE LEGISLATION OF ONE OR MORE MEMBER STATES SHOULD BE CALCULATED PERIODICALLY IN ACCORDANCE OR BY ANALOGY WITH THE PROVISIONS CONTAINED IN ARTICLE 107 OF REGULATION NO 574/72 IN VIEW OF CHANGES IN THE EXCHANGE RATES?

IF SO , WHEN THOSE PERIODICAL RECALCULATIONS ARE MADE , SHOULD

( A ) ACCOUNT BE TAKEN OF THE AMOUNT OF THE FOREIGN BENEFIT OR BENEFITS APPLICABLE ON THE DATE OF THE RECALCULATION NOTWITHSTANDING THE PROVISIONS CONTAINED IN ARTICLE 51 OF REGULATION NO 1408/71 ;

( B)A COMPARISON BE MADE ON EACH OCCASION BETWEEN THE AMOUNT OF BENEFIT DUE UNDER NATIONAL LAW AND THE AMOUNT CALCULATED IN ACCORDANCE WITH THE RULES CONTAINED IN ARTICLE 46 OF REGULATION NO 1408/71?

' '

FIRST QUESTION

10 IT IS APPARENT FROM THE SUPPLEMENTARY ORDER OF THE CENTRALE RAAD VAN BEROEP THAT THE FIRST QUESTION CONCERNS CASES IN WHICH THE BENEFITS AT ISSUE MAY BE REGARDED AS BEING OF A DIFFERENT KIND . IN THOSE CIRCUMSTANCES IT APPEARS THAT THE FIRST QUESTION FALLS INTO TWO PARTS : THE FIRST AS TO WHETHER A RETIREMENT PENSION GRANTED TO THE WIDOW OF A WORKER PURSUANT TO UNITED KINGDOM LEGISLATION AND A NETHERLANDS WIDOW ' S PENSION GRANTED PURSUANT TO THE WIDOWS AND ORPHANS LAW ARE BENEFITS OF THE SAME KIND UNDER COMMUNITY LAW ; THE SECOND PART , WHICH DEPENDS UPON THE ANSWER GIVEN TO THE FIRST PART OF THE QUESTION , SEEKS TO DETERMINE WHETHER NATIONAL PROVISIONS AGAINST OVERLAPPING BENEFITS OR THOSE CONTAINED IN ARTICLE 46 OF REGULATION NO 1408/71 SHOULD BE APPLIED .

11 IN REPLY TO THE FIRST PART OF THE QUESTION THE UNITED KINGDOM AUTHORITIES HAVE OBSERVED THAT THE RETIREMENT PENSION CANNOT BE CONSIDERED A SURVIVOR ' S BENEFIT . IT IS A RETIREMENT PENSION TO WHICH ALL MARRIED WOMEN ARE ENTITLED IN THEIR OWN RIGHT EVEN THOUGH IT IS AWARDED ON THE BASIS OF THE INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS OF THE HUSBAND . THE FACT THAT THE AMOUNT OF THE BENEFIT IS RECALCULATED AND INCREASED BY REASON OF THE DEATH OF THE HUSBAND HAS NO EFFECT ON THE NATURE OF THE BENEFIT .

12 IT SHOULD FIRST BE NOTED THAT ACCORDING TO THE TERMS OF PARAGRAPH 9 OF PART G OF ANNEX V TO REGULATION NO 1408/71 , INVALIDITY , OLD AGE AND WIDOWS ' PENSIONS AWARDED UNDER UNITED KINGDOM LEGISLATION MUST BE REGARDED AS BENEFITS OF THE SAME KIND .

13 IT MAY THEN BE OBSERVED THAT , IRRESPECTIVE OF THE CHARACTERISTICS PECULIAR TO THE VARIOUS NATIONAL LAWS , SOCIAL SECURITY BENEFITS MUST BE CONSIDERED AS BEING OF THE SAME KIND WHEN THEIR PURPOSE AND BASIS OF CALCULATION ARE THE SAME .

14 IN THAT RESPECT , BENEFITS ACQUIRED UNDER THE LEGISLATION OF TWO MEMBER STATES , WHICH SEEKS TO ENSURE THAT AN AGED PERSON DEPRIVED OF THE INCOME OF HIS OR HER DECEASED SPOUSE HAS SUFFICIENT MEANS OF SUBSISTENCE , AND THE RESPECTIVE AMOUNTS OF WHICH ARE DETERMINED ON THE BASIS OF THE INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS OF THAT SPOUSE , MUST BE CONSIDERED TO BE BENEFITS OF THE SAME KIND BY REASON OF THEIR IDENTICAL PURPOSE AND BASIS OF CALCULATION .

15 IN RELATION TO THE ANSWER TO THE SECOND PART OF THE QUESTION , ON THE APPLICABILITY OF RULES AGAINST OVERLAPPING BENEFITS , IT SHOULD BE POINTED OUT THAT THE NATIONAL COURT CONSIDERED ONLY INSTANCES IN WHICH THOSE BENEFITS OF THE SAME KIND ARE GRANTED EXCLUSIVELY ON THE BASIS OF ENTITLEMENT UNDER NATIONAL LAW . IT SHOULD BE RECALLED THAT , ACCORDING TO WELL-ESTABLISHED CASE-LAW , WHEN A WORKER RECEIVES A PENSION PURSUANT TO NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THAT LEGISLATION FROM BEING APPLIED TO HIM IN ITS ENTIRETY , INCLUDING THE NATIONAL RULES AGAINST OVERLAPPING BENEFITS . IT MUST BE NOTED HOWEVER THAT IF IT HAPPENS THAT THE APPLICATION OF THAT NATIONAL LEGISLATION IS LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF ARTICLE 46 OF REGULATION NO 1408/71 , THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED . IN THE LATTER SUPPOSITION , PARAGRAPH ( 3 ) OF ARTICLE 46 , WHICH SEEKS TO LIMIT THE OVERLAP OF ACQUIRED BENEFITS , BY THE MEANS PROVIDED IN PARAGRAPHS ( 1 ) AND ( 2 ) OF THAT ARTICLE , IS APPLICABLE , TO THE EXCLUSION OF RULES AGAINST OVERLAPPING LAID DOWN BY NATIONAL LEGISLATION .

16 THE FIRST QUESTION , AS AMENDED BY THE SUPPLEMENTARY ORDER OF THE COURT OF REFERENCE , SHOULD THEREFORE BE ANSWERED AS FOLLOWS :

BENEFITS ACQUIRED UNDER THE LEGISLATION OF TWO MEMBER STATES , WHICH SEEKS TO ENSURE THAT AN AGED PERSON DEPRIVED OF THE INCOME OF HIS OR HER DECEASED SPOUSE HAS SUFFICIENT MEANS OF SUBSISTENCE , AND THE RESPECTIVE AMOUNTS OF WHICH ARE DETERMINED ON THE BASIS OF THE INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS OF THAT SPOUSE , ARE BENEFITS OF THE SAME KIND .

WHERE A WORKER RECEIVES A PENSION PURSUANT TO NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THE NATIONAL LEGISLATION FROM BEING APPLIED TO HIM IN ITS ENTIRETY , INCLUDING ANY NATIONAL RULES AGAINST OVERLAPPING BENEFITS . IF , HOWEVER , THE APPLICATION OF THE NATIONAL LEGISLATION PROVES TO BE LESS FAVOURABLE TO THE WORKER THAN THE APPLICATION OF THE PROVISIONS LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71 , THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED . IN THE LATTER CIRCUMSTANCES PARAGRAPH ( 3 ) OF ARTICLE 46 IS APPLICABLE TO THE EXCLUSION OF THE RULES AGAINST OVERLAPPING CONTAINED IN NATIONAL LEGISLATION .

SECOND QUESTION

17 IN THE LIGHT OF THE ANSWER GIVEN TO THE FIRST QUESTION , THE SECOND QUESTION MUST BE REGARDED AS RELATING TO THE ISSUE OF WHETHER , IN CASE OF THE OVERLAPPING OF BENEFITS OF THE SAME KIND , THE METHOD OF CURRENCY CONVERSION PROVIDED FOR BY ARTICLE 107 OF REGULATION NO 574/72 OF THE COUNCIL MUST BE APPLIED FOR THE IMPLEMENTATION OF THE NATIONAL RULES AGAINST OVERLAPPING BENEFITS .

18 BOTH FROM THE OBJECT AND FROM THE WORDING OF REGULATION ( EEC ) NO 2639/74 OF THE COUNCIL OF 15 OCTOBER 1974 ( OFFICIAL JOURNAL L 283 , P . 1 ) AMENDING REGULATION NO 574/72 FIXING THE PROCEDURE FOR IMPLEMENTING REGULATION ( EEC ) NO 1408/71 , IT APPEARS THAT ARTICLE 107 OF THAT REGULATION SEEKS TO FIX THE RATE OF CONVERSION OF SUMS EXPRESSED IN ONE NATIONAL CURRENCY INTO ANOTHER ONLY IN ORDER TO ALLOW THE APPLICATION OF THE PROVISIONS OF REGULATION NO 1408/71 .

19 IN RELATION TO THE APPLICABILITY OF THAT PROVISION IN THE EVENT OF THE OVERLAPPING OF BENEFITS OF THE SAME KIND FOR THE IMPLEMENTATION OF RULES AGAINST OVERLAPPING , IT IS CLEAR FROM THE FOREGOING THAT ARTICLE 107 CAN BE APPLIED ONLY IN THE EVENT OF BENEFITS ' HAVING BEEN AWARDED TO THE BENEFICIARY ON THE BASIS OF ARTICLE 46 OF REGULATION NO 1408/71 , WHERE THAT SOLUTION IS MORE FAVOURABLE TO HIM THAN THE RESULT OF THE STRAIGHTFORWARD APPLICATION OF NATIONAL RULES . ON THE OTHER HAND WHEN ENTITLEMENTS ARE CALCULATED ON THE BASIS OF NATIONAL RULES ALONE , ARTICLE 107 OF REGULATION NO 574/72 CANNOT BE APPLIED AND THE CURRENCY EXCHANGE RATES REMAIN AS DETERMINED BY NATIONAL RULES .

20 THE SECOND QUESTION MAY THEREFORE BE ANSWERED AS FOLLOWS : WHERE BENEFITS OF THE SAME KIND ARE GRANTED OR AWARDED IN DIFFERENT MEMBER STATES ON THE BASIS OF ANALOGOUS NATIONAL RULES , WITHOUT ANY REFERENCE TO THE PROVISIONS OF REGULATION NO 1408/71 THERE ARE NO GROUNDS FOR APPLYING THE METHOD OF CURRENCY CONVERSION SET OUT IN ARTICLE 107 OF REGULATION NO 574/72 .

THIRD QUESTION

21 THE THIRD QUESTION SEEKS , IN ESSENCE , TO ESTABLISH WHETHER , REGARD BEING HAD TO THE VARIATIONS IN RATES OF CONVERSION BETWEEN CURRENCIES , COMMUNITY LAW REQUIRES A PERIODICAL RECALCULATION OF BENEFITS WHOSE AMOUNT HAS BEEN DETERMINED BY TAKING INTO ACCOUNT A BENEFIT ACQUIRED IN ANOTHER MEMBER STATE , WHETHER BY APPLICATION OF NATIONAL LEGISLATION RELATING TO THE GRANT AND OVERLAPPING OF BENEFITS OR IN APPLICATION OF THE PROVISIONS OF ARTICLE 46 OF REGULATION NO 1408/71 .

22 IN THE FIRST CIRCUMSTANCES ENVISAGED , NAMELY WHERE BENEFITS PAID TO THE WORKER ARE EXCLUSIVELY AWARDED UNDER THE PROVISIONS OF NATIONAL LAW , NO PROVISION OF COMMUNITY LAW REQUIRING A PERIODICAL RECALCULATION ACCORDING TO THE RATES OF CURRENCY CONVERSION IS APPLICABLE .

23 IN THE SECOND SET OF CIRCUMSTANCES , NAMELY WHERE BENEFITS ARE AWARDED UNDER ARTICLE 46 OF REGULATION 1408/71 , IT IS ARTICLE 51 OF THAT REGULATION WHICH FIXES THE CONDITIONS FOR THE REVALORIZATION AND THE RECALCULATION OF THE BENEFITS . THAT ARTICLE PROVIDES :

' ' ( 1 ) IF , BY REASON OF AN INCREASE IN THE COST OF LIVING OR CHANGES IN THE LEVEL OF WAGES OR SALARIES OR OTHER REASONS FOR ADJUSTMENT , THE BENEFITS OF THE STATES CONCERNED ARE ALTERED BY A FIXED PERCENTAGE OR AMOUNT , SUCH PERCENTAGE OR AMOUNT MUST BE APPLIED DIRECTLY TO THE BENEFITS DETERMINED UNDER ARTICLE 46 , WITHOUT THE NEED FOR A RECALCULATION IN ACCORDANCE WITH THE PROVISIONS OF THAT ARTICLE .

( 2)ON THE OTHER HAND IF THE METHOD OF DETERMINING OR THE RULES FOR CALCULATING BENEFITS SHOULD BE ALTERED , A RECALCULATION SHALL BE CARRIED OUT IN ACCORDANCE WITH ARTICLE 46 . ' '

24 ARTICLE 107 OF REGULATION NO 574/72 DETERMINES THE RATE OF CONVERSION APPLICABLE IN ACCORDANCE WITH ARTICLE 51 ( 2 ) OF REGULATION NO 1408/71 . HOWEVER , ARTICLE 107 DOES NOT IMPLY THE OBLIGATION PERIODICALLY TO RECALCULATE CURRENT BENEFITS ( IN PARTICULAR , PENSIONS ) IN THE EVENT OF VARIATIONS IN THE RATES OF CONVERSION OF CURRENCY . THAT INTERPRETATION IS CONFIRMED BY DECISION NO 99 OF THE ADMINISTRATIVE COMMISSION OF THE COMMUNITIES ON SOCIAL SECURITY FOR MIGRANT WORKERS OF 13 MARCH 1975 ( OFFICIAL JOURNAL C 150 , P . 2 ) ON THE INTERPRETATION OF ARTICLE 107 ( 1 ) OF REGULATION NO 574/72 ON THE DUTY TO RECALCULATE CURRENT BENEFITS .

25 IN THE LIGHT OF THE FOREGOING THE THIRD QUESTION MAY BE ANSWERED AS FOLLOWS : NO PROVISION OF COMMUNITY LAW REQUIRES THE PERIODICAL RECALCULATION , BY REASON OF A VARIATION IN THE RATES OF CONVERSION OF CURRENCIES , OF A SOCIAL SECURITY BENEFIT WHOSE AMOUNT HAS BEEN ESTABLISHED TAKING INTO ACCOUNT A BENEFIT ACQUIRED IN ANOTHER MEMBER STATE .

COSTS

26 THE COSTS INCURRED BY THE GOVERNMENT OF THE NETHERLANDS AND BY THE COMMISSION , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . SINCE 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 ( THIRD CHAMBER )

IN ANSWER TO THE QUESTIONS PUT TO IT BY THE CENTRALE RAAD VAN BEROEP BY ORDER DATED 11 AUGUST 1981 , HEREBY RULES :

1 . BENEFITS ACQUIRED UNDER THE LEGISLATION OF TWO MEMBER STATES , WHICH SEEKS TO ENSURE THAT AN AGED PERSON DEPRIVED OF THE INCOME OF HIS DECEASED SPOUSE HAS SUFFICIENT MEANS OF SUBSISTENCE , AND THE RESPECTIVE AMOUNTS OF WHICH ARE DETERMINED ON THE BASIS OF THE INSURANCE AND SOCIAL SECURITY CONTRIBUTIONS OF THAT SPOUSE , ARE BENEFITS OF THE SAME KIND .

WHERE A WORKER RECEIVES A PENSION PURSUANT TO NATIONAL LEGISLATION ALONE , THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PREVENT THAT NATIONAL LEGISLATION FROM BEING APPLIED TO HIM IN ITS ENTIRETY , INCLUDING ANY NATIONAL RULES AGAINST OVERLAPPING BENEFITS . IF HOWEVER THE APPLICATION OF THAT NATIONAL LEGISLATION PROVES TO BE LESS FAVOURABLE TO THE WORKER THAN APPLICATION OF THE PROVISIONS LAID DOWN IN ARTICLE 46 OF REGULATION NO 1408/71 , THE PROVISIONS OF THAT ARTICLE MUST BE APPLIED . IN THE LATTER CIRCUMSTANCES , PARAGRAPH ( 3 ) OF ARTICLE 46 IS APPLICABLE TO THE EXCLUSION OF THE RULES AGAINST OVERLAPPING BENEFITS CONTAINED IN THE NATIONAL LEGISLATION .

2 . WHERE PAYMENTS OF THE SAME KIND ARE GRANTED OR AWARDED IN DIFFERENT MEMBER STATES ON THE BASIS OF ANALOGOUS NATIONAL RULES , WITHOUT ANY REFERENCE TO THE PROVISIONS OF REGULATION NO 1408/71 , THERE ARE NO GROUNDS FOR APPLYING THE METHOD OF CURRENCY CONVERSION SET OUT IN ARTICLE 107 OF REGULATION NO 574/72 .

3 . NO PROVISION OF COMMUNITY LAW REQUIRES THE PERIODICAL RECALCULATION , BY REASON OF A VARIATION IN THE RATES OF CONVERSION OF CURRENCIES , OF A SOCIAL SECURITY BENEFIT WHOSE AMOUNT HAS BEEN ESTABLISHED TAKING INTO ACCOUNT A BENEFIT ACQUIRED IN ANOTHER MEMBER STATE .