61984J0296

1 . SOCIAL SECURITY FOR MIGRANT WORKERS - BENEFITS - NATIONAL RULES AGAINST OVERLAPPING - WHETHER APPLICABLE TO BENEFITS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION ALONE

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

2 . SOCIAL SECURITY FOR MIGRANT WORKERS - INVALIDITY INSURANCE - CALCULATION OF BENEFITS - ARTICLE 46 OF REGULATION NO 1408/71 - WHETHER APPLICABLE WHEN THE AMOUNT OF THE BENEFITS DUE BY VIRTUE OF NATIONAL LEGISLATION IS UNRELATED TO THE PERIODS COMPLETED AND WHEN THE MINIMUM PERIOD UNDER THAT LEGISLATION WAS COMPLETED IN A SPECIAL SCHEME FOR A PARTICULAR OCCUPATION - RULES FOR CALCULATING THE BENEFITS .

( REGULATION NO 1408/71 OF THE COUNCIL , ARTS 45 ( 2 ) AND 46 )

1 . THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PRECLUDE THE GRANT OF BENEFITS TO WHICH ENTITLEMENT WAS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATIVE PROVISIONS ALONE , WHEN THOSE BENEFITS ARE GREATER THAN THOSE DETERMINED PURSUANT TO ARTICLE 46 OF THE REGULATION .

IN SUCH A CASE , ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 DOES NOT PRECLUDE THE APPLICATION OF A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS , IN ORDER TO DETERMINE THE BENEFITS ACQUIRED UNDER NATIONAL LEGISLATIVE PROVISIONS ALONE .

2 . ARTICLE 46 OF REGULATION NO 1408/71 IS APPLICABLE WHERE THE AMOUNT OF THE BENEFITS DUE BY VIRTUE OF NATIONAL LEGISLATION IS UNRELATED TO THE PERIODS COMPLETED AND WHERE THE MINIMUM PERIOD GIVING RISE TO ENTITLEMENT UNDER THAT LEGISLATION HAS BEEN COMPLETED , EVEN IF THE SCHEME CONCERNED IS A SPECIAL SCHEME FOR A PARTICULAR OCCUPATION AND THE PERIODS COMPLETED IN ANOTHER MEMBER STATE WERE NOT COMPLETED WITHIN AN EQUIVALENT SCHEME .

FOR THE PURPOSE OF DETERMINING THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 1 ) IT IS NOT PERMISSIBLE TO APPLY A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS .

THE AMOUNT FOUND TO BE HIGHER , ON THE BASIS OF THE COMPARISON PRESCRIBED IN THE SECOND PARAGRAPH OF ARTICLE 46 ( 1 ), IS TO BE REDUCED WHERE APPROPRIATE IN ACCORDANCE WITH ARTICLE 46 ( 3 ).

IN CASE 296/84

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

ANTONINO SINATRA

AND

FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( FNROM ) ( MINE-WORKERS ' NATIONAL PENSION FUND ),

ON THE INTERPRETATION OF ARTICLES 12 , 45 AND 46 OF REGULATION 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 ( OFFICIAL JOURNAL 1983 , L 230 , P . 8 ),

1 BY JUDGMENT OF 5 DECEMBER 1984 , RECEIVED AT THE COURT REGISTRY ON 10 DECEMBER 1984 , THE COUR DU TRAVAIL ( LABOUR COURT ), MONS , REFERRED TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING UNDER ARTICLE 177 OF THE EEC TREATY A QUESTION ON THE INTERPRETATION OF ARTICLES 12 , 45 AND 46 OF REGULATION NO 1408/71 OF THE COUNCIL OF 14 JUNE 1971 ( AS AMENDED ) ON THE APPLICATION OF SOCIAL SECURITY SCHEMES TO EMPLOYED PERSONS , TO SELF-EMPLOYED PERSONS AND TO MEMBERS OF THEIR FAMILIES MOVING WITHIN THE COMMUNITY , WITH A VIEW TO ASCERTAINING THE APPLICABILITY OF A NATIONAL RULE AGAINST OVERLAPPING BENEFITS FOR THE PURPOSE OF CALCULATING AN INVALIDITY BENEFIT FOR UNDERGROUND MINE-WORKERS .

2 THE QUESTION AROSE IN THE CONTEXT OF PROCEEDINGS BETWEEN MR SINATRA AND THE BELGIAN FONDS NATIONAL DE RETRAITE DES OUVRIERS MINEURS ( HEREINAFTER REFERRED TO AS ' THE FUND ' ) CONCERNING THE APPLICATION BY THE FUND - THE BODY RESPONSIBLE FOR ADMINISTERING THE INVALIDITY PENSION SCHEME FOR UNDERGROUND MINE-WORKERS - OF THE RULE AGAINST OVERLAPPING BENEFITS LAID DOWN BY ARTICLE 23 ( 1 ) OF THE ROYAL DECREE OF 19 NOVEMBER 1970 AND THE CONSEQUENT DEDUCTION FROM MR SINATRA ' S BELGIAN PENSION ACCRUING UNDER THE AFORESAID SCHEME OF THE AMOUNT OF THE ITALIAN INVALIDITY PENSION WHICH HE RECEIVES .

3 MR SINATRA WORKED FROM 1948 TO 1956 AS AN EMPLOYED PERSON IN ITALY AND THEN WORKED FROM 1957 TO 1970 AS AN UNDERGROUND MINE-WORKER IN BELGIUM . HE RECEIVES AN ITALIAN INVALIDITY PENSION , APPORTIONED IN ACCORDANCE WITH ARTICLE 46 OF REGULATION NO 1408/71 , THE AMOUNT OF WHICH IS RELATED TO THE LENGTH OF THE INSURANCE PERIODS COMPLETED . SINCE 1 APRIL 1971 , HE HAS BEEN IN RECEIPT OF A BELGIAN UNDERGROUND MINE-WORKER ' S INVALIDITY PENSION BY VIRTUE OF THE ROYAL DECREE OF 19 NOVEMBER 1970 . THE AMOUNT OF THAT PENSION IS UNRELATED TO THE LENGTH OF THE INSURANCE PERIODS COMPLETED ; MR SINATRA COMPLETED THE MINIMUM NUMBER OF YEARS ' SERVICE WITH MINING COMPANIES REQUIRED IN ORDER TO QUALIFY FOR THAT PENSION .

4 IN A REVIEW OF MR SINATRA ' S FILE - THE PERMISSIBILITY OF WHICH WAS IN ESSENCE THE SUBJECT OF THE QUESTION REFERRED TO THE COURT OF JUSTICE IN CASE 7/81 ( JUDGMENT OF 2 FEBRUARY 1982 SINATRA V FNROM ( 1982 ) ECR 137 ) - THE FUND APPLIED THE RULE AGAINST OVERLAPPING BENEFITS LAID DOWN IN ARTICLE 23 ( 1 ) OF THE ROYAL DECREE OF 19 NOVEMBER 1970 AND DEDUCTED FROM THE BELGIAN PENSION THE AMOUNT OF THE ITALIAN PENSION . ARTICLE 23 ( 1 ) PROVIDES AS FOLLOWS :

' AN INVALIDITY PENSION GRANTED UNDER THIS DECREE MAY BE AGGREGATED WITH ONE OR MORE RETIREMENT OR INVALIDITY PENSIONS ONLY UP TO THE ANNUAL AMOUNT OF THE PENSION AS LAID DOWN BY ARTICLE 4 ( 1 ), ( 2 ) OR ( 4 ), ACCORDING TO WHETHER THE WORKER IS MARRIED , SINGLE , WIDOWED , DIVORCED OR SEPARATED . '

A ROYAL DECREE OF 3 AUGUST 1983 AMENDED THE ABOVE PROVISION SO AS TO PROHIBIT OVERLAPPING BENEFITS IN THE CASE OF ONE OR MORE RETIREMENT OR INVALIDITY PENSIONS , WHETHER GRANTED UNDER BELGIAN OR FOREIGN LEGISLATION .

5 MR SINATRA COMMENCED PROCEEDINGS TO PREVENT THE REDUCTION OF HIS BELGIAN PENSION . THE ACTION WAS BROUGHT BEFORE THE COUR DU TRAVAIL , MONS , BEFORE WHICH MR SINATRA ARGUED THAT , ACCORDING TO ARTICLE 46 OF REGULATION NO 1408/71 , A COMPARISON HAD TO BE MADE BETWEEN THE AMOUNT OF THE BELGIAN INVALIDITY PENSION AFTER SUBTRACTION OF THE ITALIAN PENSION AND THE AMOUNT OF THE BELGIAN PENSION APPORTIONED BY REFERENCE TO THE LENGTH OF THE INSURANCE PERIODS COMPLETED IN BELGIUM . SINCE THE LATTER AMOUNT WAS HIGHER IT SHOULD BE PAID TO HIM BY VIRTUE OF THE COMMUNITY REGULATIONS .

6 ACCORDING TO THE FUND , THE NATIONAL RULE AGAINST OVERLAPPING BENEFITS IS APPLICABLE BECAUSE MR SINATRA IS IN RECEIPT OF A FULL PENSION BY VIRTUE OF BELGIAN LEGISLATION ALONE . AS THE AGGREGATION RULE IS NOT APPLICABLE IN THIS INSTANCE , BY VIRTUE OF ARTICLE 45 ( 2 ) OF THE REGULATION , IT IS NOT POSSIBLE TO APPLY ARTICLE 46 THEREOF EITHER .

7 IN ORDER TO BE IN A POSITION TO GIVE A RULING ON THE DISPUTE , THE COUR DU TRAVAIL , MONS , REFERRED THE FOLLOWING QUESTION TO THE COURT OF JUSTICE FOR A PRELIMINARY RULING :

' WHERE THE LEGISLATION OF A MEMBER STATE OF THE COMMUNITY MAKES PAYMENT OF INVALIDITY BENEFIT UNDER A SPECIAL SCHEME FOR MINE-WORKERS CONDITIONAL UPON THE COMPLETION OF A SPECIFIED MINIMUM PERIOD OF INSURANCE , ALTHOUGH THE AMOUNT OF SUCH BENEFIT IS NOT DETERMINED BY THE TOTAL LENGTH OF THE PERIODS OF INSURANCE ( THERE BEING NO RECOURSE TO AGGREGATION ), AND CONTAINS A RULE AGAINST OVERLAPPING WITH BENEFITS ACQUIRED UNDER FOREIGN LEGISLATION , MUST REGULATION NO 1408/71 , PARTICULARLY ARTICLES 12 , 45 AND 46 , BE INTERPRETED AS MEANING THAT THE COMPETENT INSTITUTION OF THAT MEMBER STATE MUST , IN THE CASE OF A WORKER WHO IS COVERED BY THAT LEGISLATION BUT ALSO RECEIVES AN APPORTIONED PENSION BY VIRTUE OF A GENERAL SCHEME PROVIDED FOR BY THE LEGISLATION OF ANOTHER MEMBER STATE , COMPARE THE COMMUNITY BENEFIT , OBTAINED ON THE BASIS OF ARTICLE 46 ( 1 ) WITHOUT APPLICATION OF THE NATIONAL RULES AGAINST OVERLAPPING AND OF ARTICLE 46 ( 3 ), WHICH FIXES AS A CEILING THE HIGHEST THEORETICAL AMOUNT OF PENSION , WITH THE BENEFIT OBTAINED EXCLUSIVELY BY APPLICATION OF THE NATIONAL LEGISLATION , INCLUDING THE RULE AGAINST OVERLAPPING WITH BENEFITS ACQUIRED UNDER FOREIGN LEGISLATION , IN ORDER TO DISCOVER WHICH SYSTEM IS MORE FAVOURABLE TO THE MIGRANT WORKER ( YIELDING THE HIGHER PENSION)?

'

8 THE QUESTION IS CONCERNED IN THE FIRST PLACE WITH THE INTERPRETATION OF ARTICLE 12 ( 2 ) OF THE REGULATION .

9 IN ITS FIRST SENTENCE ARTICLE 12 ( 2 ) LAYS DOWN THE RULE THAT PROVISIONS AGAINST OVERLAPPING WHICH ARE CONTAINED IN THE LEGISLATION OF A MEMBER STATE MAY BE INVOKED ' EVEN THOUGH THE RIGHT TO SUCH BENEFITS WAS ACQUIRED UNDER THE LEGISLATION OF ANOTHER MEMBER STATE ' . HOWEVER , ACCORDING TO THE SECOND SENTENCE OF ARTICLE 12 ( 2 ) THAT RULE DOES NOT APPLY WHEN THE PERSON CONCERNED RECEIVES BENEFITS ' WHICH ARE AWARDED BY THE INSTITUTIONS OF TWO OR MORE MEMBER STATES IN ACCORDANCE WITH ( INTER ALIA ) ARTICLE 46 ... ' .

10 IN THIS CONNECTION , THE COMMISSION BEGINS BY OBSERVING THAT A DISTINCTION SHOULD BE DRAWN BETWEN PROVISIONS AGAINST OVERLAPPING WHICH COVER ONLY DOMESTIC BENEFITS AND PROVISIONS AGAINST OVERLAPPING WHICH EXPRESSLY COVER FOREIGN BENEFITS . IN ITS ORIGINAL VERSION , ARTICLE 23 ( 1 ) OF THE ROYAL DECREE OF 19 NOVEMBER 1970 COVERED ONLY DOMESTIC BENEFITS , SINCE IT DID NOT EXTEND TO BENEFITS ACCRUING UNDER THE LEGISLATION OF ANOTHER MEMBER STATE .

11 ON THIS POINT IT SHOULD BE RECALLED THAT , IN ACCORDANCE WITH THE ALLOCATION OF FUNCTIONS BETWEEN THE COURT OF JUSTICE AND THE NATIONAL COURTS WHICH UNDERLIES ARTICLE 177 OF THE EEC TREATY , IT IS FOR THE NATIONAL COURT , AND NOT THE COURT OF JUSTICE , TO INTERPRET NATIONAL LEGAL PROVISIONS AND TO RULE ON THEIR APPLICATION TO THE PARTICULAR CASE . SINCE , AS MAY BE SEEN FROM ITS JUDGMENT , THE COUR DU TRAVAIL RAISED THE QUESTION WITH REFERENCE TO A RULE AGAINST OVERLAPPING WHICH COVERED FOREIGN BENEFITS , THE COURT SHOULD REPLY ON THAT BASIS .

12 ACCORDING TO THE ITALIAN GOVERNMENT , THIS CASE SHOULD LEAD THE COURT TO DEPART FROM ITS PREVIOUS DECISIONS IN WHICH IT PERMITTED NATIONAL RULES AGAINST OVERLAPPING BENEFITS TO BE APPLIED TO BENEFITS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION ALONE . EVEN WHEN THE PERSON CONCERNED IS ENTITLED TO A BENEFIT ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION ALONE , THE AWARD OF SUCH A BENEFIT IS STILL MADE ' IN ACCORDANCE WITH ARTICLE 46 ' FOR THE PURPOSES OF ARTICLE 12 ( 2 ) OF THE REGULATION . COORDINATION BY THE COMMUNITY OF THE VARIOUS NATIONAL SCHEMES , AS PROVIDED FOR BY ARTICLE 51 OF THE EEC TREATY , PRECLUDES THE REDUCTION OF A BENEFIT ACQUIRED UNDER A SINGLE BODY OF LEGISLATION .

13 IN THIS REGARD IT SHOULD BE RECALLED THAT , IN ITS JUDGMENT OF 21 OCTOBER 1975 ( CASE 24/75 PETRONI V ONPTS ( 1975 ) ECR 1149 ), THE COURT HELD THAT ARTICLE 46 ( 3 ) WAS INCOMPATIBLE WITH ARTICLE 51 OF THE TREATY IN SO FAR AS IT IMPOSED A LIMITATION ON THE OVERLAPPING OF BENEFITS ACQUIRED IN DIFFERENT MEMBER STATES BY A REDUCTION IN THE AMOUNT OF THE BENEFIT ACQUIRED UNDER NATIONAL LEGISLATION ALONE . IT FOLLOWS FROM THAT JUDGMENT THAT A BENEFIT ACQUIRED BY VIRTUE OF NATIONAL LEGISLATIVE PROVISIONS ALONE , IF IT IS MORE FAVOURABLE THAN THE BENEFIT OBTAINED BY APPLYING ARTICLE 46 OF THE REGULATION , IS DUE IRRESPECTIVE OF THAT ARTICLE , BY VIRTUE OF THE NATIONAL PROVISIONS ALONE .

14 HOWEVER , AS THE COURT HAS REPEATEDLY RULED ( SEE JUDGMENTS OF 13 OCTOBER 1977 , CASE 22/77 FNROM V MURA ( 1977 ) ECR 1699 ; OF 14 MARCH 1978 , CASE 98/77 SCHAAP V BEDRIJFSVERENIGING ( 1978 ) ECR 707 ; AND OF 2 JULY 1981 , JOINED CASES 116 , 117 , 119 , 120 AND 121/80 RWP V CELESTRE ( 1981 ) ECR 1737 ), IN SUCH A CASE IT IS NOT THE SECOND BUT THE FIRST SENTENCE OF ARTICLE 12 ( 2 ) WHICH APPLIES ; CONSEQUENTLY , THE NATIONAL LEGISLATIVE PROVISIONS REQUIRING THE REDUCTION , SUSPENSION OR WITHDRAWAL OF BENEFITS MAY BE INVOKED . THE REASON FOR THIS IS THAT , WHILST REGULATION NO 1408/71 DOES NOT AFFECT BENEFITS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATIVE PROVISIONS ALONE , THOSE PROVISIONS MUST BE VIEWED AS A WHOLE , INCLUDING ANY RULES AGAINST OVERLAPPING BENEFITS WHICH THEY MAY CONTAIN . NOT ONLY WOULD ANY OTHER SOLUTION BE CONTRARY TO THE WORDING OF ARTICLE 12 ( 2 ), BUT IT WOULD HAVE THE EFFECT OF ENABLING THE PERSON CONCERNED TO DERIVE , FROM THE SIMULTANEOUS APPLICATION OF THE LEGISLATIVE PROVISIONS OF TWO OR MORE MEMBER STATES , ADVANTAGES CONSIDERED EXCESSIVE BOTH BY THE NATIONAL LEGISLATION IN QUESTION AND BY THE SPECIFIC PROVISIONS OF ARTICLE 46 OF THE REGULATION .

15 IT FOLLOWS THAT ARTICLE 12 ( 2 ) OF THE REGULATION DOES NOT PRECLUDE THE APPLICATION OF A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS TO BENEFITS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATION PROVISIONS ALONE .

16 THE QUESTION REFERRED TO THE COURT THEN SEEKS TO ASCERTAIN WHETHER ARTICLE 46 OF REGULATION NO 1408/71 IS APPLICABLE IN A CASE SUCH AS THE PRESENT AND HOW THE AMOUNT OF THE BENEFITS TO BE PAID PURSUANT TO THAT ARTICLE IS TO BE DETERMINED .

17 ACCORDING TO THE FUND , THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 1 ), CORRESPONDING TO THE TOTAL LENGTH OF INSURANCE PERIODS COMPLETED UNDER THE SPECIAL SCHEME FOR MINE-WORKERS , MUST BE DETERMINED IN ACCORDANCE WITH THE RULE AGAINST OVERLAPPING BENEFITS CONTAINED IN ARTICLE 23 ( 1 ) OF THE ROYAL DECREE OF 19 NOVEMBER 1970 , AS IS APPARENT FROM ARTICLE 12 ( 2 ) OF THE REGULATION . THE EFFECT OF THE BASIC RULE IN ARTICLE 45 ( 2 ) OF THE REGULATION IS TO MAKE IT IMPOSSIBLE IN THIS CASE , WHEN CALCULATING THE PENSION ACCRUING UNDER THE SPECIAL BELGIAN SCHEME FOR MINE-WORKERS , TO AGGREGATE THE ITALIAN INSURANCE PERIODS COMPLETED OUTSIDE THE MINES WITH PERIODS SPENT WORKING IN THE BELGIAN MINES AND TO UNDERTAKE THE COMPARISON PROVIDED FOR BY THE SECOND SUBPARAGRAPH OF ARTICLE 46 ( 1 ).

18 MR SINATRA DISAGREES , ARGUING THAT FOR THE PURPOSES OF CALCULATING THE BENEFIT DUE UNDER ARTICLE 46 AGGREGATION AND APPORTIONMENT MUST INVARIABLY BE CARRIED OUT , EVEN IN A CASE SUCH AS THE PRESENT ONE . THE FUND SHOULD THEREFORE AWARD HIM AN INVALIDITY PENSION APPORTIONED IN THE RATIO WHICH THE NUMBER OF YEARS OF INSURANCE COMPLETED IN BELGIUM BEARS TO THE TOTAL PERIOD OF HIS WORKING LIFE .

19 IT SHOULD BE RECALLED THAT , UNDER ARTICLE 40 ( 1 ) OF REGULATION NO 1408/71 , ARTICLE 46 IS APPLICABLE BY ANALOGY TO INVALIDITY BENEFITS WHERE A WORKER HAS BEEN SUCCESSIVELY OR ALTERNATELY SUBJECT TO THE LEGISLATION OF TWO OR MORE MEMBER STATES , AND THE LEGISLATION OF AT LEAST ONE OF THOSE MEMBER STATES MAKES THE AMOUNT OF THE BENEFITS DEPENDENT ON THE LENGTH OF THE INSURANCE PERIODS . ARTICLE 46 ( 1 ) PROVIDES FOR A COMPARISON BETWEEN , ON THE ONE HAND , THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH THEREOF , NAMELY THE AMOUNT OF THE BENEFIT ACCRUING BY VIRTUE OF THE PROVISIONS OF THE NATIONAL LEGISLATION CONCERNED AND CORRESPONDING TO THE TOTAL LENGTH OF THE INSURANCE PERIODS OR RESIDENCE PERIODS TO BE TAKEN INTO ACCOUNT UNDER THAT LEGISLATION AND , ON THE OTHER HAND , THE AMOUNT OF BENEFIT OBTAINED BY APPLYING THE RULES LAID DOWN IN ARTICLE 46 ( 2 ) ( A ) AND ( B ). ONLY THE HIGHER AMOUNT IS SELECTED , IN ACCORDANCE WITH THE SECOND PARAGRAPH OF ARTICLE 46 ( 1 ).

20 IT FOLLOWS FROM THE CASE-LAW CITED EARLIER THAT IT IS THE BENEFIT AS CALCULATED UNDER ARTICLE 46 WHICH MUST BE GRANTED WHEN IT PROVES TO BE MORE FAVOURABLE THAN THE BENEFIT ACQUIRED BY VIRTUE OF NATIONAL LEGISLATIVE PROVISIONS ALONE , INCLUDING ANY RULES WHICH THEY MAY CONTAIN TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS . WHILST IT IS TRUE THAT ARTICLE 45 ( 2 ) PROVIDES THAT INSURANCE PERIODS ARE NOT TO BE AGGREGATED WHERE - AS IN THIS CASE - THE SCHEME CONCERNED IS A SPECIAL SCHEME FOR A PARTICULAR OCCUPATION AND THE INSURANCE PERIODS COMPLETED IN ANOTHER MEMBER STATE WERE NOT COMPLETED UNDER AN EQUIVALENT SCHEME , THE APPLICATION OF ARTICLE 46 AND THE COMPARISON OF BENEFITS UNDER THE SECOND SUBPARAGRAPH OF ARTICLE 46 ( 1 ) ARE NOT SUBJECT TO THE CONDITION THAT ALL THE RELEVANT PERIODS SHOULD BE CAPABLE OF AGGREGATION FOR THE PURPOSE OF DETERMINING THE BENEFITS . ARTICLE 46 THEREFORE APPLIES IN ITS ENTIRETY IN A CASE SUCH AS THE PRESENT ONE .

21 AS FAR AS THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 1 ) IS CONCERNED , THE ABOVE-MENTIONED CASE-LAW OF THE COURT , CONFIRMED MOST RECENTLY BY TWO JUDGMENTS OF 4 JUNE 1985 ( CASES 58/84 ONPTS V ROMANO ( 1985 ) ECR 1679 ; AND 117/84 ONPTS V RUZZU ( 1985 ) ECR 1697 ), ESTABLISHES THAT WHAT IS MEANT IS THE AMOUNT TO WHICH THE WORKER WOULD BE ENTITLED UNDER NATIONAL LEGISLATION IF HE WERE NOT IN RECEIPT OF A PENSION BY VIRTUE OF THE LEGISLATION OF ANOTHER MEMBER STATE . THE APPLICATION OF A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS IS PRECLUDED IN THIS CONTEXT , IN CONFORMITY WITH THE SECOND SENTENCE OF ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 .

22 AS REGARDS THE AMOUNT TO BE DETERMINED PURSUANT TO ARTICLE 46 ( 2 ) ( A ) AND ( B ), THE SECOND SENTENCE OF SUBPARAGRAPH ( A ) PROVIDES AS FOLLOWS : ' IF . . . THE AMOUNT OF THE BENEFIT ( TO BE PAID UNDER NATIONAL LEGISLATION ) DOES NOT DEPEND ON THE LENGTH OF THE INSURANCE PERIODS COMPLETED , THEN THAT AMOUNT SHALL BE TAKEN AS THE THEORETICAL AMOUNT REFERRED TO IN THIS SUBPARAGRAPH . ' WHEN , IN SUCH A CASE , THAT AMOUNT IS EQUAL TO THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 1 ), THE ACTUAL AMOUNT OF BENEFIT , ESTABLISHED ACCORDING TO ARTICLE 46 ( 2 ) ( B ) IN THE RATIO WHICH THE LENGTH OF THE INSURANCE PERIODS COMPLETED UNDER THE RELEVANT LEGISLATION BEARS TO THE TOTAL LENGTH OF THE INSURANCE PERIODS COMPLETED UNDER THE LEGISLATIVE SYSTEMS OF ALL THE MEMBER STATES INVOLVED , MAY NOT BE HIGHER THAN THE AMOUNT ENVISAGED BY ARTICLE 46 ( 1 ). THAT BEING SO , THE QUESTION IN DISPUTE BETWEEN THE FUND ON THE ONE HAND AND MR SINATRA AND THE ITALIAN GOVERNMENT ON THE OTHER , NAMELY WHETHER THE CALCULATION UNDER ARTICLE 46 ( 2 ) MUST BE PERFORMED EVEN IN THE CASES COVERED BY ARTICLE 45 ( 2 ), BECOMES REDUNDANT .

23 IT SHOULD BE ADDED THAT , AS THE COMMISSION AND THE ITALIAN GOVERNMENT HAVE OBSERVED , THE AMOUNT THEREBY DETERMINED MUST BE SUBJECT TO THE REDUCTION PROVISION CONTAINED IN ARTICLE 46 ( 3 ). UNDER THAT PROVISION THE HIGHEST OF THE THEORETICAL AMOUNTS OF BENEFIT CALCULATED IN ACCORDANCE WITH ARTICLE 46 ( 2 ) ( A ) CONSTITUTES THE UPPER LIMIT ON THE SUM OF THE BENEFITS CALCULATED ACCORDING TO PARAGRAPHS ( 1 ) AND ( 2 ) AND PAYABLE BY ANY INSTITUTION APPLYING PARAGRAPH ( 1 ).

24 THE QUESTION REFERRED TO THE COURT BY THE COUR DU TRAVAIL , MONS , SHOULD THEREFORE BE ANSWERED AS FOLLOWS :

( 1 ) THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PRECLUDE THE GRANT OF BENEFITS TO WHICH ENTITLEMENT WAS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATIVE PROVISIONS ALONE , WHEN THOSE BENEFITS ARE GREATER THAN THOSE DETERMINED PURSUANT TO ARTICLE 46 OF THE REGULATION .

IN SUCH A CASE , ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 DOES NOT PRECLUDE THE APPLICATION OF A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS , IN ORDER TO DETERMINE THE BENEFITS ACQUIRED UNDER NATIONAL LEGISLATIVE PROVISIONS ALONE .

( 2)ARTICLE 46 OF REGULATION NO 1408/71 IS APPLICABLE WHERE THE AMOUNT OF THE BENEFITS DUE BY VIRTUE OF NATIONAL LEGISLATION IS UNRELATED TO THE PERIODS COMPLETED AND WHERE THE MINIMUM PERIOD GIVING RISE TO ENTITLEMENT UNDER THAT LEGISLATION HAS BEEN COMPLETED , EVEN IF THE SCHEME CONCERNED IS A SPECIAL SCHEME FOR A PARTICULAR OCCUPATION AND THE PERIODS COMPLETED IN ANOTHER MEMBER STATE WERE NOT COMPLETED WITHIN AN EQUIVALENT SCHEME .

FOR THE PURPOSE OF DETERMINING THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 1 ) IT IS NOT PERMISSIBLE TO APPLY A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS .

THE AMOUNT FOUND TO BE HIGHER , ON THE BASIS OF THE COMPARISON PRESCRIBED IN THE SECOND PARAGRAPH OF ARTICLE 46 ( 1 ), IS TO BE REDUCED WHERE APPROPRIATE IN ACCORDANCE WITH ARTICLE 46 ( 3 ).

COSTS

25 THE COSTS INCURRED BY THE ITALIAN GOVERNMENT AND BY THE COMMISSION OF THE EUROPEAN COMMUNITIES , WHICH HAVE SUBMITTED OBSERVATIONS TO THE COURT , ARE NOT RECOVERABLE . AS THESE PROCEEDINGS ARE , IN SO FAR AS THE PARTIES TO THE MAIN PROCEEDINGS ARE CONCERNED , IN THE NATURE OF A STEP IN THE PROCEEDINGS 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 REFERRED TO IT BY THE COUR DU TRAVAIL DE MONS BY A JUDGMENT OF 5 DECEMBER 1984 , HEREBY RULES :

( 1 ) THE PROVISIONS OF REGULATION NO 1408/71 DO NOT PRECLUDE THE GRANT OF BENEFITS TO WHICH ENTITLEMENT WAS ACQUIRED BY VIRTUE OF NATIONAL LEGISLATIVE PROVISIONS ALONE , WHEN THOSE BENEFITS ARE GREATER THAN THOSE DETERMINED PURSUANT TO ARTICLE 46 OF THE REGULATION .

IN SUCH A CASE , ARTICLE 12 ( 2 ) OF REGULATION NO 1408/71 DOES NOT PRECLUDE THE APPLICATION OF A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS , IN ORDER TO DETERMINE THE BENEFITS ACQUIRED UNDER NATIONAL LEGISLATIVE PROVISIONS ALONE .

( 2)ARTICLE 46 OF REGULATION NO 1408/71 IS APPLICABLE WHERE THE AMOUNT OF THE BENEFITS DUE BY VIRTUE OF NATIONAL LEGISLATION IS UNRELATED TO THE PERIODS COMPLETED AND WHERE THE MINIMUM PERIOD GIVING RISE TO ENTITLEMENT UNDER THAT LEGISLATION HAS BEEN COMPLETED , EVEN IF THE SCHEME CONCERNED IS A SPECIAL SCHEME FOR A PARTICULAR OCCUPATION AND THE PERIODS COMPLETED IN ANOTHER MEMBER STATE WERE NOT COMPLETED WITHIN AN EQUIVALENT SCHEME .

FOR THE PURPOSE OF DETERMINING THE AMOUNT REFERRED TO IN THE FIRST SUBPARAGRAPH OF ARTICLE 46 ( 1 ) IT IS NOT PERMISSIBLE TO APPLY A NATIONAL RULE DESIGNED TO PREVENT THE OVERLAPPING OF DOMESTIC AND FOREIGN BENEFITS .

THE AMOUNT FOUND TO BE HIGHER , ON THE BASIS OF THE COMPARISON PRESCRIBED IN THE SECOND PARAGRAPH OF ARTICLE 46 ( 1 ), IS TO BE REDUCED WHERE APPROPRIATE IN ACCORDANCE WITH ARTICLE 46 ( 3 ).